This post is authored by Clayton Griessmeyer
Clayton is a trial lawyer licensed in Wisconsin and California. He spends most of his days working on bicycle injury cases. For over 10 years he has been helping people who get hurt riding theirs bikes throughout Wisconsin from Door County to Kewaunee to Kenosha to Madison and many counties in between. He has represented Wisconsin bicyclists and pedestrians on cases from traffic tickets to broken limbs, concussions, permanent injuries, surgeries, coma, and death. He has tried many bicycle cases to verdict and been involved in numerous bicycle injury settlements before and during lawsuits. He can be reached at 608-320-6710, 5976 Executive Drive Suite B Fitchburg 53719 or email@example.com
I am proud to say that on 6/6/2019 a Dane County Jury provided justice in the form of a $15 million verdict for the family of 23 year old Emilly Zhu who was struck and killed while riding her bicycle inside a marked crosswalk.
I represented the plaintiffs against defendant Brian Hodgson and his insurance company defendant IDS Insurance (also known as Ameriprise).
On June 10, 2015 a man named Brian Hodgson struck 23 year old Emilly Zhu as she was riding her bicycle to work at about 7:20 a.m. in Madison, Wisconsin. The driver, Brian Hodgson struck Emilly’s left rear side with the left front side of his car while Emilly was inside a marked crosswalk and more than halfway across the road. Before striking her, he chose to swerve left/ in the direction she was riding.
Wisconsin law requires people who drive motor vehicles to yield the right of way to people who are walking, jogging, or riding bicycles within crosswalks. If a pedestrian or person riding a bicycle suddenly darts out in front of a vehicle and into a crosswalk, then neither person has the right of way. See Wis. Stat. 346.24, Schueler v. Madison, 49 Wis. 2d 695, and Chernetski v. American Family 515 N.W. 2d 283.
In this case, Emilly faced a stop sign on the bike path before entering the crosswalk. The jury was instructed that Wisconsin law required her to stop for the stop sign before entering the roadway. The jury was instructed that if the jury found Emilly did not stop for the stop sign, that would be negligence. The jury was also instructed that a person driving a motor vehicle shall yield the right of way to a person riding a bicycle within a marked crosswalk.
Appropriate reduced speed: The statute also provides that a driver must drive at an appropriate reduced speed(when approaching and crossing [an intersection] [a railway grade crossing]) (when approaching and going around a curve) (when approaching a hillcrest) (when traveling upon any narrow or winding roadway) (when passing [school children] [highway construction or maintenance workers] [other pedestrians]) (when special hazards exist with regard to other traffic or by reason of weather or highway conditions). Appropriate reduced speed means less than the otherwise lawful speed.
Right of way at Crosswalk 346.24 Crossing at uncontrolled intersection or crosswalk.
(1) At an intersection or crosswalk where traffic is not controlled by traffic control signals or by a traffic officer, the operator of a vehicle shall yield the right-of-way to a pedestrian or personal delivery device, or to a person riding a bicycle or electric personal assistive mobility device in a manner which is consistent with the safe use of the crosswalk by pedestrians, that is crossing the highway within a marked or unmarked crosswalk.
(2) No pedestrian, personal delivery device, bicyclist, or rider of an electric personal assistive mobility device may suddenly leave, and no personal delivery device operator may allow a personal delivery device to suddenly leave, a curb or other place of safety and walk, run, or ride into the path of a vehicle which is so close that it is difficult for the operator of the vehicle to yield.
346.24(3) (3) Whenever any vehicle is stopped at an intersection or crosswalk to permit a pedestrian, personal delivery device, bicyclist, or rider of an electric personal assistive mobility device to cross the roadway, the operator of any other vehicle approaching from the rear may not overtake and pass the stopped vehicle.
Evidence at trial:
At the trial, plaintiffs called three City of Madison Police Officers to testify, (two of which were present at the scene of the crash, the other did a speed calculation and determined speed of 52-55 mph for Hodgson), one state trooper, a paramedic, accident reconstructionist engineer, three people who came to the scene and tried to help Emilly, an emergency room doctor, defendant’s lawyer from June 2015, both of Emilly’s parents, Hodgson’s friend who sent two texts to Hodgson just before the crash and a few other witnesses.
Defendant’s lawyers chose not to call any witnesses. They filed a motion in limine (pretrial motion) asking the court to exclude the police officers’ reports from evidence. The motion was granted.
Defendant Hodgson’s lawyer admitted to the jury at trial, (in closing argument) that Hodgson was going a minimum of 53 mph as he approached the marked crosswalk and marked bike/ped crossing. Hodgson testified he was going 35-40 mph. Defendant’s lawyer told the jury in closing argument that plaintiffs’ accident reconstructionist engineer is the best in the state and that defendants adopt all of his opinions. These opinions included that had defendant Hodgson been going 45 (the max speed limit) or less, or had he not swerved in the same direction as Ms. Zhu, the crash never would have happened. The opinions also included that had Hodgson been going 35 mph as he told the police, his car would have stopped before ever getting to the crosswalk and there never would have been a crash.
In addition to the speeding, the jury heard evidence that defendant Hodgson received two text messages on his phone in what he described was “just before,” he got in the crash. The jury was instructed that defendant Hodgson destroyed evidence including text messages from the day of the crash and failed to preserve the phone that was with him in the car during the crash. The jury heard testimony that the defendant testified at his deposition in 2016 that he never once had his phone out of his pocket while actively driving. Three days after Emilly died, the defendant drove the same route while driving and videotaping at what he says was 40 mph. The jury got to see this video. The jury also saw a second video of defendant using his phone behind the wheel of his car.
The jury had to determine who was at fault, what percentage, and how much money to include for damages to plaintiffs. After three days of testimony from plaintiffs’ witnesses, the jury found defendant Hodgson 100% at fault, Emilly 0% at fault and awarded $10 million for loss of companionship and society and $5 million for pain and suffering. The verdict also included about $127,177.79 for past medical bills and slightly under $10,000 for funeral cost.
The lesson for all of us:
No one wants to hit a human being with their motor vehicle. No one wants to get hit by a motor vehicle. Wisconsin laws require people driving motor vehicles to drive at less than the speed limit when approaching intersections and drive at a speed that avoids colliding with persons. Whenever you see a crosswalk or bike/ped crossing, slow to a reasonably safe speed such as the school zone speed of 15 mph. Make a choice to not use your phone whilst driving. Looking down for one second at 53 mph means you travel 78 feet without seeing what is in front of you. People often say that when there is a crash between a motor vehicle and a person riding a bicycle the person riding the bicycle always loses. Please remember this when you are exercising your privilege to operate a motor vehicle upon roads in Wisconsin.