Archive for the ‘Motorcycle training lawsuits’ category

The Buell Blast will still be the training bike–but without the “Buell” part

August 25, 2009

Vstromer has news from the SMSA conference that contradicts Eric Buell’s video:

“Contrary to what the Eric Buell video might lead one to believe, the Blast will continue to be manufactured, continue to be used as a training bike in Rider’s Edge classes, and continue to be offered for sale at H-D/Buell dealerships. It will be badged as a Blast, not a Buell, not a Harley, just Blast. This information comes straight from Tim Becker’s mouth at the SMSA business meeting in Madison, WI, on Friday, 8/21/2009. Tim Becker is employed by H-D, and his title is Manager Rider’s Edge.”

Well, Vstromer, that’s interesting. The Blast–when it was a Buell–sold very badly. Over the past four years, the most Buell Blasts were shipped in 2006–but that was only 1,602 motorcycles. Last year, only 1,177 were shipped–26% less than in 2006. I don’t know how many sites Rider’s Edge has now, but I can’t imagine that they will need many bikes every year and I can only imagine the economies at the scale H-D will be operating at supplying only RE sites.

I find it interesting that rather than import a small MV Augusta that would be an ideal training bike, H-D is going to continue to use the Blast…

I also find it alarming that H-D made a conscious and deliberate decision to continue to use a motorcycle associated with so many more injury and fatal crashes than another other single motorcycle out there. I guess TPTB decided the economies of acceptable loss v. profit were worth it.


MSF speaks out about the deaths–and reveals up to three more training deaths?

June 30, 2009

Yesterday evening, someone who calls himself ET commented on the entry on the bystander injury case, “I asked MSF to comment on student deaths, and they did, here’s what they said:”

I went and looked and will post it along with a different version of the reply I made him last night.  First let me note that ET is a computer programmer named Fergus Nolan of Memphis TN who has been blogging since May 2009–or for just a couple months.  In another entry, he says that he “asked Stacey of MSF about this, she promised me a press release”.  OK, only there is no “Stacey” listed in the latest MSF Contact list. Well, MSF does have a revolving door when it comes to employees so perhaps Stacey is a recent hire. So that’s one issue–who is “Stacey” with no last name?

The next issue is that I could not find this “press release” anywhere else except his blog.  However, this morning, MSF sent out a letter to state and military administrators that says, “We received an inquiry regarding the subject of the statement below.  Below is our response which we are providing to you as a courtesy copy and as an update to what we provided to you at the conference last August.”  So it is legitimate and I suppose one man’s press release is another man’s letter–or MSF looks upon state and military administrators as members of the meda? Who knows.

With those issues already raised, let’s see what allegedly MSF has to say about the deaths:

“Riding, especially learning to ride, has inherent risks. MSF is concerned about any crash that occurs, whether it’s on the road or during training. We take safety seriously in creating the best environment to pursue one’s dream to ride. A primary goal of the MSF is to ensure a low risk, positive learning environment for beginning students so that they can make the best choices while learning and riding.
Since its founding in 1973, more than 4.6 million students have been trained using Motorcycle Safety Foundation curricula, including approximately 2.5 million since 2002. MSF prides itself on making the highest quality research-based and field-tested motorcycle training curricula available to riders and prospective riders throughout the United States and the world.
MSF is unable to disclose details related to fatalities because of privacy considerations. However, since there has been some misreporting on this subject, MSF welcomes the opportunity to provide factual information.
Since 2002, out of the roughly 2.5 million students trained, there have been six crashes that resulted in the death of students, including one that was caused by a serious medical condition. In the past year, three additional students died from medical conditions while not riding. Every fatality has been thoroughly investigated by law enforcement, insurance investigators, or others. The curricula, and the delivery of the curricula by RiderCoaches, have never been determined to be a factor. MSF employs a stringent quality assurance program as part of its ongoing effort to review and refine policies and practices to minimize the inherent risks associated with training.”

For something that’s supposed to be “factual information” there’s precious little facts or information to be had. So let’s look at what MSF has to say–and what it doesn’t say in this “release”:

First of all, though it mentions that 4.6 million have been trained, which means  2.1 million were trained prior to 2002, it does not mention that in those 28 years only one rider died from injuries sustained during training (in 1998 in Valley Forge, PA) and in those 28 years, only one student, apparently, died of a heart attack sustained while at training (though not while riding).

Yet it does mention that with 2.5 million supposedly trained six have been killed from 2002–though it doesn’t mention the case of paraplegia, nor the other life-threatening incidents–and further reveals that three more have died in the past year and implies these weren’t training crashes. This represents a dramatic change in the number of deaths anyway you look at it.

But note how it describes the three deaths in the past year: “from medical conditions while not riding”.  However, if a student ran into a wall, for example, and suffered head and/or thoraic trauma that could be truthfully described as a “medical condition.” Of course in a crash, a rider ejects from the bike. If the rider did not literally die on the bike but succumbed after ejecting from the bike–and even weeks later in the hospital–it could be legitimately though misleadingly described as the rider dying “while not riding.”  Iow, MSF’s tricksy and bizarre way of presenting this “factual” information does not exlude fatal training crashes. Absent complete disclosure of the incidents–of which no one has heard that I know of–we can not rule out 3 more fatal rider training crashes precisely because of the lack of “factual information” in the press release.

It appears to try to fob the Uke’s Harley-Davidson Rider’s Edge death off again by citing the heart attack–even though the student was not treated for a heart attack at the scene but was treated for head trauma. He did suffer a heart attack after five days in intensive care and that was the final medical straw.

MSF says, “Every fatality has been thoroughly investigated by law enforcement, insurance investigators, or others. The curricula, and the delivery of the curricula by RiderCoaches, have never been determined to be a factor.” However, neither law enforcement nor insurance agents are qualified–nor concerned with–whether the curriculum nor delivery is to blame. Their interests are concerned with other things. Note that MSF doesn’t say rider educators investigated this–nor even that its own QAV specialists did or what their conclusions were.

Now let’s deal with the “low-risk” environment that MSF says it’s so concerned about creating: the death of an instructor (of which ET is  erroneously informed) in Valencia, CA, the death of a student in Honesdale, PA, the paraplegia case at the range in Sugar Notch, PA and the near-fatal crash in West Virginia were all in programs administrated by MSF on ranges certified directly by MSF employees. So one wonders exactly how MSF defines “low-risk”.

The release does say that it has a “stringent quality assurance program” however, in all but the cases mentioned above, MSF was not in the position to exert QAV on those sites nor instructors–or even the programs. Nor, of course, did it’s QAV program make an iota of difference in California, Pennsylvania or West Virginia where MSF employees were directly supervising training.

It says that it “unable to disclose details” because of privacy reasons–though in previous years it’s claimed that it couldn’t because of pending litigation. Neither excuse holds up–the personal information on the student (and instructor(s)) could be redacted and all the relevant information needed by the true experts be viewed.

What the real news is–and thank you very much Stacey–is that there have been three more deaths in one year–deaths that cannot be assumed to be not related to training crashes.

So now let’s return to this “press release” that Stacey gave Nolan aka ET. I find it interesting that after years of MSF stonewalling every rider education expert and magazine writer and refusing to say anything at all about any of the deaths that they should suddenly become so forthcoming with someone who has been blogging since May of this year. Especially when Nolan says on his About Us page on the site that he has “no qualifications to run this site” and has almost no knowledge of motorcycle safety–let alone training.  He also describes himself at another point as just “a simple-minded bike rider who has some time on his hands, access to a web server.”

Especially since Tim Buche impressed upon Dave Searle and Fred Rau an I during a personal tour of MSF/MIC/SVIA how very carefully they vet those the communications department will talk to–let alone come up with their very own press release on something as controversial as the deaths.

After years of stonewalling and a very rigid, paranoid relationship with the media, MSF choses to come out of the closet to a newly-minted, self-proclaimed uninformed blogger. And if that don’t just beat all… Not to mention that had MSF examined his site–as Buche claimed the communications department does before treating with the media–they would’ve found numerous factual errors in what he writes. So why this blogger? I have no idea.

Nolan says in another blog entry he’s sure he’s going to be accused of being part of some conspiracy “pretty soon”.  I hadn’t heard of him until he himself drew his blog and this “press release” to my attention. He says he contacted MSF and Stacey of no last name nor listing as an employee sent him a press release. As this is very much in the open, it hardly seems to be a conspiracy–though perhaps Nolan has confused the word “conspiracy” with “self-promotion” or perhaps “meglomania”.

But just who is this ET, Fergus Nolan? On the About Us page on his site it says he’s employed by FNSK Company INC.  However, according the Tennessee Secretary of State site, that corporation was dissolved in 1995 and he was  the principal agent–so even though that corporation doesn’t legally exist anymore, it appears in search engines with Nolan’s home address (the one he incorporated under).  I suppose one could say they are employed by a company that they themselves own–just like one could say a rider that ran into a wall or off a slope died from a medical condiion but not while he was riding.

Nor is BikeSafer is registered as a dba in Tennessee–or rather not one I could find at any rate. It is owned by FNSK Company, which is owned by Nolan. Iow, “ET” creates the illusion that there is an “About Us” when there really is an “About Him”.

He is a programmer who works out of his home as a consultant–in fact, he’s listed as Fergus Nolan Corp–but there is no business entity listing for that either on the Secretary of State site. I presume the laws must be looser in TN and anyone can claim they are something they have not legally registered to be. Sortof like MSF claimng it’s curriculum is both research-based and field-tested and of the “highest quality”.

Mandatory training bill in North Carolina—now with mushy language

April 15, 2009

Two years ago, the Concerned Bikers Association/ABATE of North Carolina successfully beat off a mandatory training bill—but you can’t keep a bad bill down. It’s back and its passed the Senate and is before the House.

Last time, the bill would’ve abolished permits altogether, and the problems with that are both obvious and were obviously heeded. This time it does allow a rider to have a motorcycle permit—a rider just can’t renew it. This makes sense—a rider needs a permit to practice but should move on to endorsement or give up a privilege that was only meant to be temporary.

What’s most interesting about this year’s rendition is the editions it has gone through and how the language has changed—and what happens as a result.

Under NC’s current law, to obtain a motorcycle endorsement, a rider must prove competency to “drive” a motorcycle by passing a road test, passing a written or oral test and paying a fee.

Senate Bill 64 was introduced with this key new text: “To obtain a motorcycle endorsement, a person shall demonstrate competence to drive a motorcycle by passing a riding skills test administered by the Division or by providing proof of successful completion of the North Carolina Motorcycle Safety Education Program Basic Rider Course or Experienced Rider Course.” And pay a fee.

While it still includes a skills test, it removes the requirement it be a road test. In this version, a written or oral test is removed and not included in any other way.

Note the difference a few words make. The rider must pass a riding skills test but only has to successfully complete a training course to get a motorcycle endorsement. While one can assume that there’s no difference between the two that’s not what is says and this is exactly how loopholes are created.

Whether it’s meant or not, the effect is to remove the legal requirement to have to demonstrate the skill and competency required to operate a motorcycle—in addition to having to prove one can operate that motorcycle in traffic.

The second edition—and third—change that language is even more radical ways: “To obtain a motorcycle endorsement, a person shall demonstrate competence to drive a motorcycle by passing a written or oral test concerning motorcycle and providing proof of successful completion of one of the following:

(1) The Motorcycle Safety Foundation Basic Rider Course or Experienced Rider Course.

(2) The North Carolina Motorcycle Safety Education Program Basic Rider Course or Experienced Rider Course.

(3) Any course approved by the Commissioner.

The second edition adds the written or oral test back in but makes competency to drive a motorcycle a matter of passing either a written or oral test.

This time, however “or” is replaced by “and”—taking a course is now required but the rider still has to only prove successful completion of a course.

From having to prove competence on the road, to having to prove competence in skills—all mention of the necessity of skill has been removed in the text of the bill.

Once again, we trust that skills testing is essential to passing the course because we trust that the state motorcycle safety program would allow nothing else—and we have means, as citizens, to insist that be so. But it’s no longer just the state program that has the right to set the standards for successful completion.

The bill adds not one but two other avenues to taking a course that would yield a motorcycle endorsement at the end: The Motorcycle Safety Foundation Basic Rider Course or Experienced course or “Any course approved by the Commissioner.”

In what is surely an accident, MSF is given first place above the NCMSEP, but, at this time at least, the NCMSEP teaches the MSF course. It would appear, then that it is redundant to mention both. However, it allows any provider—including dealerships—that uses MSF curriculum to operate apart from the NCMSEP without any oversight or approval. Or I allows MSF to set up its own system of franchises.

But more importantly, this isn’t the driver’s license-waiver—this is the endorsement itself. As such, anyone who teaches MSF curriculum can hand out motorcycle endorsements for “successful completion” of the course without any outside authority determining what “successful completion” is. Unless, of course, MSF is going to start operating a state or national system to provide oversight to providers who are not part of the state system. Say, for example, from MSF’s regional “campus” in Georgia.

Even so, we know what the MSF courses teach and that there are evaluations as part of successfully graduating from the course. We know that actual riding skills are minimally tested. That is now, however, and no guarantee that the standards will remain the same in the future.

One of the more subtle effects of the bill is to remove the power of the state to determine what the standards of competency are for motorcycle operation in any way. The Division of Motor Vehicles no longer is responsible and those through the NCMSEP apply only to that option for getting a motorcycle endorsement.

Instead, a trade group of motorcycle manufacturers who have a financial interest in more people “successfully completing” the course and buying motorcycles have the power to determine the standards for a state and to exercise what has been—and still is—seen as a necessary government function—granting a motorcycle endorsement.

While I realize that many motorcyclists are antagonistic to government regulation, do the riders of North Carolina really want the motorcycle manufacturers regulating what it means to “successfully complete” and thus be endorsed instead?

And these standards can differ from those the state sets through the state program but be equally legal—and that presents its own set of problems.

Then there’s the third option: “Any course approved by the Commissioner” can suffice to gain a motorcycle endorsement. Once again, we assume it means a training course of some kind with some recognizably sufficient standards. This could allow a completely different curriculum and perhaps a superior one. Otoh, it could mean a cooking class, if the Commissioner decided so or a “Wave a Magic Wand” class. While that seems ludicrous the vague wording creates an enormous loophole.

This bill, then, has several problems—not just the discrimination issue that adult motorcyclists are required to take training while adult car drivers are not—but the removal of “competency” being a matter of skill, the dumbing down of the standard of passing a road test and a written or oral test to passing a written or oral test and successful completion of “any approved course”. No longer do North Carolinians have to pass a test, they merely have to successfully complete a course. Not to mention the problems of setting up separate and equal standards for a trade group or “any other course” and granting a state function to manufacturers or dealers or, it appears, anyone else.

Not to mention that even NHTSA, in Countermeasures That Work, says most programs use some version of MSF curriculum but it’s uncertain what constitutes good training or whether training is effective at reducing crashes at all. But, by law, all North Carolinians will have it–however uncertain it is to show even competency–if this bill passes.

Otoh, it’s good news for the litigious among us. In other states—most noticeably Florida—lawsuits filed against training programs in particular often are summarily dismissed because the student signs a liability waiver. Courts have not seen motorcycle training, in particular, as a matter of necessity—the student doesn’t have to take it and therefore doesn’t have to sign the waiver–and that makes a hash of public policy arguments. But make training mandatory for adults—and Senator Rand will hand personal injury lawyers the goose and the golden eggs.

They say the law of unintended consequences means that an action will have least three unexpected, unanticipated results. That is likely to be one of them. I wonder what the others will be?

Oh, btw, did I mention that North Carolina also has another bill before it’s legislature that would prohibit government competition with private enterprise? At this time, SB1004 is solely concerned with the communications industry. But then SB64 used to require passing some kind of skills test, too.

But, hey, so what if there’s more lawsuits and if there’s two or three standards all equally able to grant an endorsement and the manufacturers and dealers determine who “successfully completes” but doesn’t have to pass and therefore gets an endorsement? It’s not like that stuff is going to happen, is it?

As long as the good riders of NC believe that there will be some skill level required to “successfully complete” some no-name or brand name course that should be good enough. Loopholes schmoopholes, right?

Pennsylvania may have no-fault ranges

April 4, 2009

At this point we turn to pending legislation in the state of Pennsylvania. The Commonwealth  safety program  has had more known severe injuries and deaths than any other state program. According to the state program manager Dave Surgenor, bystanders, cars, motorcycles and sheds have been hit by students. Two of the known deaths have occurred in the state program, at least one case of complete paraplegia and at least one other lawsuit has been filed against MSF—though what injuries were involved are not (yet) known.

When lawsuits are filed, the property owner is often named—particularly if an obstacle or dangerous condition is seen as relevant to the crash. For that reason site owners have good reason to be very leery of allowing the PAMSP anywhere near their pavement.

It is with great interest, then, that PA HB1189 would amend legislation the state motorcycle program and indemnify the owner(s) of land used for ranges from civil lawsuits. Currently there are 78 sites listed on the 2009 RERP Site List for the PAMSP.

According to one of the sources who sent one of the copies of the bill to me, PA’s ABATE is in full support of the bill. Richard A. Geist (R) is the sponsor of the bill.

The text of the bill is not available on the PA legislative site. I, however, was sent two copies of the same .pdf file of the bill text as it was on March 2, 2009.

The first part of Title 75 (Vehicles), Section 7911 that established the state motorcycle safety program and lists its duties remains unchanged except to add the words “General Rule” at the beginning.

Here’s the new wording, “(b) Exemption from liability. –The owner of land who authorizes the owner’s property to be used for the purposes of an approved motorcycle safety education program as provided in subsection (a) shall not be held civilly liable for any injury or death to persons or damage to property that may occur during the course of instruction or training, except for willful or malicious failure to warn against a dangerous condition, use, structure or activity.”

The language gives the “owner of the land” a blanket liability waiver except in very extreme—and extremely difficult to prove—circumstances. However, since the PAMSP trains and certifies the instructors, certifies the range, conducts the classes, it’s only fair that the owner—who may have no familiarity with motorcycling and certainly no responsibility for the actual class—is excluded from these kind of suits.

Particularly because so many of Pennsylvania’s ranges are on the parking lots of state-owned or state-related universities, colleges or community colleges, other schools, state agencies and even three are on property owned or operated by the military. Indemnification, then, would protect the Commonwealth–and thus the riders as well as non-riders.

This bill, once signed into law, would take effect in 60 days.

It appears that this law could convince more parking lot owners to allow the state program to conduct training on their pavement. The bill, then, could be a blessing for state programs in their desperate hunt for good pavement. Because of this, other states or regional programs may scramble to get this bill before their state legislatures as well.

Except…well, there’s a few issues in the text that perhaps PA’s ABATE didn’t think through—and there’s another bill before the Senate that would change the meaning of HB1189 significantly. That’s the next entry.

Wording opens up, perhaps, unintended consequences

While the law appears beneficial to the state motorcycle program, it is vague. For example, it doesn’t specify who should be warned nor any limits on when such a warning—or how clear the warning should be. Does the warning need to be given just once? Could it be given just once at some point in the past? According to the language in the bill, that could indemnify the property owner.

And how would the property owner know what constitutes a danger—according to MSF’s range approval form, that’s the responsibility of the “Training Provider in consultation with RiderCoach” to determine and the signatory to the RERP agreement must sign that he or she accepts all responsibility for the range. Otoh, because, as the program is now run, why should the property owner because of PAMSP’s and the instructor’s failure of judgment?

Additionally, the nature of a warning means that the condition can still exist and does not have to be rectified. For example, there could be edge traps and potholes and, as long as someone at some point in time was warned dangerous conditions could still exist but the owner would still have a blanket indemnity.

It doesn’t say who is to be warned—the student? PennDOT? The motorcycle safety program? As written, as long as someone anywhere was warned at any time, it would be sufficient to indemnify the owner of the land. However, if the intent is that the student be warned, technically the student liability waiver would be sufficient to warn the student that dangers exist.

Another issue that PA’s ABATE may not have considered is this would allow training to occur on dangerous terrain—such as a hilltop range with a long slope 20’ or high curbs/berms and large rocks or poorly constructed Armco barriers or buildings or concrete/brick walls or fences just beyond 20’ from the perimeter. All of which have been involved in one or more of the deadly or near-fatal crashes in rider training. Will such a law mean, “If you indemnify it, they will paint it”?

However, under MSF’s administration—and with MSF employees choosing, laying out and certifying those ranges—more severe injuries and deaths have occurred on Pennsylvania ranges than in any state in the nation—in fact, more than any in the world.

Nor does the bill specify if it would only cover current and future owners or if this indemnity would reach back into the past and cover the site owners who have had those deadly severe crashes.

The bill, in my opinion, is too vague and offers a blanket liability that could have the unintended consequences of creating even more dangerous ranges. If the state program—and MSF—is doing an adequate job, however, those ranges would not be approved. However, all the ranges where students and the one instructor have been killed or critically injured in rider training have been approved by the state and by MSF.

The text of the bill, as written, then indemnifies the owner of the land against anything whatsoever in any way happens during the course of training as long as some sort of vague warning was given at some point to someone. Such problems could be corrected before the bill is passed—but will the PA ABATE see the need?

After all, why should the owner of the land be liable? It’s not like the property owner chose the range and laid it out and conducts the training on the site. No, that’s the Pennsylvania state motorcycle safety program.

Wait a minute—that may not be true if another bill passes the General Assembly and is signed into law. That’s the next entry. And if that bill passes, it will not only change the meaning of this bill, HB1189 but could completely transform rider training in Pennsylvania.

MSF pays out almost 3/4 million in legal fees in 2007

March 18, 2009

The Motorcycle Safety Foundation’s IRS 990 forms give us a snapshot on how much attorneys have become involved in rider training over the years of MSF’s quest to take control over rider education and it’s attempt to fight lawsuits from dangerous training. It proves one thing: Taking over the world of training–and dealing with the injuries and deaths in training–is costing more every year.

In 1997, the last year before the first death in training, MSF spent $17,988 on legal fees. That year, MSF was taking over the New Mexico state program.

In 1998, a student’s aorta was sliced open in a training crash in Valley Forge, Pennsylvania, but MSF’s legal fees dropped to $11,764.

In 1999, MSF spent $124,292 on legal fees. It was that year, MSF was working on taking over the Pennsylvania state program.

In 2000, legal fees dropped to $6,356.

In 2001, the year the BRC was rolled out and MSF took over the West Virginia program, MSF spent $32,659 on legal fees.

The following year, 2002, two deaths occurred in Harley-Davidson’s Rider’s Edge program. MSF spent $24,985 on legal fees.

In 2003, the year a woman died in training in Colorado Springs, Colorado, MSF spent $41,505. This was the only death where the training provider was covered by USIS insurance.

In 2004, the year MSF took over the California state program and began threatening rumbles directed at the TEAM Oregon program, MSF spent $365,147.

In 2005, MSF spent $209,919 on legal fees.

In 2006, an instructor died in a training crash in the MSF-administrated California program in Valencia. A student died from injuries in a Harley-Davidson’s Rider’s Edge course in Kenosha, Wisconsin and a bystander suffered a broken hip in a runoff crash in Independence, Missouri. MSF spent 542,740 on legal fees. At the end of the year, MSF filed the lawsuit against TEAM Oregon.

In 2007, a student died in a training crash in Honesdale, and another student was paralyzed from the neck down in a training crash in Sugar Notch. Both crashes were in the MSF-run Pennsylvania program. The lawsuit against TEAM Oregon was still on-going. That year MSF spent $733,695 in legal fees.

Legal costs are soaring--along with the fatality rate

Legal costs are soaring--along with the fatality rate

MSF’s expenses in 2007 totalled $11,809,185, of which legal fees were 6.3%. That same year MSF/MIC/SVIA president Tim Buche earned a total compensation package of $312,412—and MSF paid over $540,000 in liability insurance.

More on Almost Million dollar Bystander Cse

March 17, 2009

Even though one of the conditions of the bystander’s million dollar broken hip case was partial confidentiality you can find the original lawsuit here on the Your Missouri Courts site. Type in: Friend, Doris or type in case number 0716-CV13432 and Doris Friend et al v. Rolling Wheels (et al) comes up. Click on the case number then, in the menu bar above, Parties & Attorneys. Scroll down and you’ll find Motorcycle Safety Foundation. This confirm the MSF was the “national licensing organization”—as if there was any doubt. I spoke with Danny Thomas, the plaintiff’s attorney late last week. Here is what he had to say:

Note: Danny Thomas, of Humphrey, Farrington & McLain never referred to MSF as anything except in vague terms such as “anonymous defendant” or “national licensing organization” or the Basic RiderCourse as “the curriculum the school used.” However, since the Your Missouri Court site does identify MSF and that means the BRC I will use those terms in the following.

The school involved was Rolling Wheels Training Center and here’s the range—though according to a source, it’s been moved further east than it appears in the Google satellite photo. The range has a 40’ run-off—but immediately beyond the run-off area are parking spaces that are regularly is use. The range has a 3-degree slant sloping from north to south.

The crash occurred on Wednesday July 5, 2006 at 8:30 am in Exercise 2, Part III. The rider was riding a Honda Rebel that weighed 300 lbs (engine sized was not available). She had fallen in the same part of the exercise before she had the run-off. She rode south and downhill off the range towards the stores and traveled less than 100 feet from the range before hitting the car.

Doris Friend was just putting her drycleaning in her car when the student hit it so hard it raised up in the air and towards Friend. As it came down the car hit Friend knocking her over and breaking her hip. The student was also injured and also transported to the emergency room by ambulance but was not as seriously injured as Friend.

In this case, of course, the liability-waiver did not apply. After the suit was filed, there was not a great deal of cooperation on MSF’s part. During the discovery phase, Thomas repeatedly requested MSF make insurance claims on incident reports from 2002-2006 and that used the BRC. Thomas said MSF refused to turn them over and protested that in no other lawsuit had they been compelled to do so. The judge finally had to order MSF to release them.

Thomas first said they sent between 20,000 and 40,000. Only incidents at sites that had purchased MSF RiderCourse Insurance were included. All programs/sites that use another insurance carrier were not included.

“Not all of them,” Thomas said, “were injury crashes.”

MSF’s policy is that an incident report be filled out if there’s any property damage or injury—even if minor. According to the RiderCourse Insurance Plan brochure, MSF has a $25,000 self insured retention (SIR), commonly called a deductible) on each occurrence for liability. MSF pays up to that $25,000 directly without involving the insurance company.

Thomas didn’t know if incident reports below those limits were included.

Within a few days of Thomas receiving the incident reports—and before he another attorney had a chance to look more than a fraction of them—MSF’s attorneys contacted them asking for a settlement.

One of the conditions of the settlement was that all of the incident reports be returned immediately. An administrator of a fairly large program commented that it’s as if the huge settlement was more to hide what was in the incident reports than for the broken hip itself.

Thomas never had the opportunity to catalogue all the injuries or what kind they were. What he saw, though, disturbed him greatly.

Thomas said early on in the conversation that there had been seven deaths since 2002. At a later point in the conversation he once again said there had been seven deaths “since the current curriculum has been taught.”

I clarified that there had been six from 2002 on that I had discovered: Fenton, MO, Laconia, NH, Colorado Springs, CO, Valencia, CA, Kenosha, WI, and Honesdale, PA. He stopped me at that point—the one in Pennsylvania didn’t count as it was prior to the BRC. No, that one happened in Valley Forge in 1998, I said. There was another one in Honesdale, PA in 2007.

There was a stunned silence on the other end of the line and then he said he hadn’t known about that one. There was also a crash that resulted in quadriplegia two weeks later in Sugar Notch, PA, I added. If anything the silence was deeper, more shocked. He said he hadn’t known that either.

At which point I was a bit stunned—if he wasn’t counting either death in Pennsylvania—it could mean there are two other deaths that have so far been hidden from the motorcycling and rider education community—and the general public.

If there has been two more deaths, all eight occurred since 2002 and all eight deaths were in courses taught with student-centered, adult-learning instruction. Unfortunately, he couldn’t recall where those deaths occurred and he had to go on to another meeting. So far, a request for further information has not be responded to—but if it is, I’ll be sure to let readers know.

Thomas is appalled at what he has learned about rider training under this organization. He said he wanted the public to find out about the case, wanted people to know what they were getting into—though so far news of the case has only made it into Missouri Lawyers Weekly.

“It’s a horrible program,” he said. “Horrible.”

Not your parent’s Kodak moment: MSF’s requirement to take pictures

March 16, 2009

Item #42 on the Motorcycle Safety Foundation’s Incident Report is “Picture Requirement”—which is not required in the Pennsylvania motorcycle safety program but is required in the California one MSF administrates.

“Photographs to be taken for any incident where the student received an injury meeting the definition of a severe or fatal injury. Do not move the motorcycle from its point of rest prior to taking the photographs” [Bolding in original text].

Horse retorted, “What if the motorcycle is on the student—they’re supposed to leave it while they take photos?”

That’s not an idle question—in the fall of 2007 at the Sugar Notch site in the Pennsylvania Motorcycle Program, a student failed to make a turn and ran-off the range, hit a berm and she and the bike became airborne, she hit her head on a rock and when her body came to rest, the motorcycle landed on top of her. She’s a quadriplegic now.

The requirement doesn’t specify what should or shouldn’t be photographed, however, if documenting motorcycle damage was the goal, standing it upright so that pictures can be taken of all sides would be the logical action.

This requirement suggests the Motorcycle Safety Foundation believes severe injury and fatal crashes have such a high probability of occurring in any given class on any given day—that the camera has to be there. As Horse said, “If it’s required, then [severe injury and fatal crashes are] expected.”

Range cards, check. Water, check. Camera, check.

There is no requirement to take any other kind of photos—group, individual, etc. as Harley-Davidson’s Rider’s Edge does. However, the picture requirement also indicates MSF expects instructors to have a camera not just with them but close enough during range sessions that it can be used in a timely manner. And that means a camera has to be available at every session of every course since such events can’t be predicted.

And that means the instructors have to coordinate who is to bring one or one has to be kept on site. Either way planning and preparation is required: working and extra batteries and enough film or memory available.

The requirement necessitates instructors to treat the camera like range cards, a whistle, a hat, suntan lotion, water, food and any of other things the instructor brings along. Or, if kept at the site, the manager has to treat it like gasoline, spare parts, etc. Either way, those are elements that have ordinary, innocuous and even safety implications. They also need planning and preparation—but there’s not necessarily an Motorcycle Safety requirement about each of them.

Unlike those items, though, the camera has no other purpose to be at the course than to document violent crashes because MSF expects a lawsuit as a result.

Premeditation implies foreknowledge

The picture requirement specifically suggests the Motorcycle Safety Foundation knows that training is far more dangerous now that in the past and severe and fatal crashes have much higher probability of occurring than it has led rider educators, motorcyclists and the general public to believe.

What MSF is most concerned about

The 2007 Pennsylvania Update spent time going over the new incident report form that, for the first time, included boxes for possible head injury, possible life-threatening injury and death.

The 2008 Update spent time once again telling instructors how to fill out the form.

The 2009 Update spent one hour going over the Legend—which explained in written form what had been presented verbally for the previous two years.

Iow, at least three hours have been spent at PAMSP Updates going over how to fill out a form after an injury crash has occurred. This, instructors were told, was just CYA. An abundance of caution so that the worst doesn’t happen.

But the very worst had already happened in 2007. A few months after the new incident form began to be used in Pennsylvania, those boxes were needed: A student was killed at the Honesdale High School site and another student had a crash that resulted in quadriplegia at the Sugar Notch site.

MSF, then, spent hours telling the instructors how to fill out the form hasn’t spent even five minutes to discuss how such injuries are occurring or how to prevent them.

And that seems to indicate MSF finds lawsuits the most dangerous thing of all.