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.

Joe the Instructor-slash-Paramedic

March 13, 2009

In the past two entries we’ve been looking at the Legend MSF is distributing to instructors in Pennsylvania and now I have confirmation it’s being distributed in California. This entry looks at the section on the RiderCoach’s summary of student injuries.

Beyond the fraudulent injury issue, these injuries MSF considers a “complaint of pain”:

“1) Persons who seem dazed, confused or incoherent.” Two rider educators I spoke to both, separately, immediately said, “Oh, that’s the instructor.”

These can be symptoms of something like stress or could be a mild brain injury that occurs without loss of consciousness or headache. But “possible brain injury,” MSF says is a “severe injury”. Joe the Instructor is not qualified to determine why the student is dazed, confused or incoherent, rider administrators and instructors all agree.

#3 is related to the first one: “3) Any person who is known to have been unconscious as a result of the incident, although it appears he/she has recovered.” Once again, if the student lost consciousness it could indicate a brain injury.

Rider administrators were concerned these conditions were minimized as complaints of pain—and the second, if not the first, would’ve resulted in an ambulance call.

That both—and especially #3 were classified as pain complaints contradicts MSF’s definition of Severe Injury: “An injury other than a fatal injury which results in broken bones, dislocated or distorted limbs, severe lacerations or unconsciousness at or when taken from the incident scene.” Just because they come to doesn’t mean the brain isn’t injured or that death couldn’t still result.

“Other Visible Injury” is the classification for mild-moderate injuries and “includes: bruises (discolored or swollen); places where the body has received a blow (black eyes and bloody noses); and abrasions (areas of the skin where the surface is roughened or broken by scratching or rubbing which includes skinned shins, knuckles, knees and elbows.)” Sprains and strains do not appear in any classification.

The last category in the Legend is “Fatal Injury”—yet some of the victims died hours or days or even a week later. How can an instructor with First Aid training determine which injuries will ultimately kill the student if the student isn’t already dead on site?

Each of these classifications requires the instructor to determine the severity of injuries and put it down on the form. Instructors feel that diagnosing injury severity is way above their pay grade. As one instructor said, “I’ve taken an on-line first aid and CPR course. What do I know?” Another asked how he’s supposed to determine the injury was fatal if the rider didn’t die at the scene? Others said, “I’m not a doctor/paramedic/EMT. I’m not going near that.”

Administrators are even more alarmed than instructors at the thought of instructors judging injuries as they understand the legal risks, too. To follow MSF’s instructions, then, exposes the instructor’s and program’s ass at the expense of covering someone else’s.

At least the appearance of dangerous training

The rider educators I spoke to were troubled by the list of injuries. Once again, they unanimously felt it creates the impression that the course very dangerous, and they felt that the list’s existence makes it appear as if they are reasonably expected outcomes of training and regular occurrences. And, once again, they also felt it might scare instructors away from taking on so much personal risk as well as be used by a plaintiff’s attorney.

Just imagine what students would think if they saw that list spelled out with all the easily visualized violence of the crash and blood? So if this is just an abundance of caution, it really sends the wrong message. As Birdwatcher said, “If it’s overpreparation, that’s kind of alarming.”

He went on to say that if those kind of crashes and injuries are, in fact, occurring, “I’d think there was something fundamentally wrong with the instruction or how the instructors were taught.”

But is this an “abundance of caution” thing?

Just like with the symbols of crashes that shouldn’t occur but have, the answer is no—these kind of injuries have been occurring in training or there wouldn’t have been deaths associated with the MSF curriculum.

And we already know students have suffered multiple fractures in their legs. And there’s even been crashes with multiple fractures of both legs and ribs—not to mention at least one spine—and there’s been at least one punctured lung, and multiple severe lacerations. These kind of wounds come from crashing into objects like concrete walls and fences and streams and into parked vehicles—including motorcycles and SUVs and cars.

This part of the Legend also isn’t just a listing of things that never happen as an abundance of caution. In fact, it’s a cleaned up version of what has already occurred in training.

The answer appears to be, yes, training really has become as dangerous as the MSF’s incident report form indicates. We just don’t know how many times these crashes and injuries and deaths have happened—iow, we just don’t know how dangerous it is.

The next entry may tell us through a requirement in California (though not Pennsylvania).

PAMSP’s Legend document: What “fraudulent” says about MSF’s growing attitude

March 12, 2009

In the last entry, we began to discuss the Pennsylvania Motorcycle Safety Program’s 2009 Update. It presented crash configurations hitherto rare or unknown to rider ed as reasonably expected outcomes. While there’s evidence that these types of crashes MSF wants instructors to accurately describe do happen, it’s still not clear whether the document was prepared as “an abundance of caution” or a CYA. The next entries explore that question further in terms of what MSF says about injuries.

The Motorcycle Safety Foundation’s Incident Report Legend defines what kind of injuries belong in what category in the section on RiderCoach Description of Student Injury,: Complaint of Pain, Other Visible Injury, Severe Injury and Fatal Injury.

Fraudulent injuries?

The new “Complaint of pain” box is there for “authentic internal or other non-visible injuries and fraudulent claims of injury.” The types that should be listed as “complaints” are:

  • “1) Persons who seem dazed, confused, or incoherent.”
  • “2) Persons who are limping but do not have visible injuries.”
  • “3) Any person who is known to have been unconscious as a result of the incident, although it appears he/she has recovered.”
  • “4) Persons who say they want to be listed as injuried but do not appear to be so.”

Horse wasn’t the only one who questioned the word “fraudulent”. He said the student is in the best position to know whether he’s in pain and not the instructor. The presumption is that if a student claims to be in pain, they are in pain and should be treated as such. Instructors aren’t qualified to determine which injuries are real or fake based on what they can see or not see. Medical professionals wouldn’t dare to do that without more than what rider instructors have to go on.

But why raise the issue at all? “Fraudulent” conveys that instructors should be wary of—and even expect that—they are being duped, which, in turn, suggests the student has been plotting a lawsuit from the moment of the crash (or before?)

In reality, decades of experience have taught administrators it’s rare in the first place and students don’t fake injuries or make illegitimate complaints of pain at the time of the crash or soon after. Rather, long after the report has been filled out, filed and forgotten—and just before the statute of limitations expires—suddenly the former student claims an injury in the course has caused them pain and suffering. And those cases are extremely rare. None of them have ever felt a need to raise the idea that some claims of pain may be phony.

This is the first time the concept of “fraudulent” injuries appears in an MSF document—something new has emerged into the arena of rider ed in a way that was not challenged but assumed to be true. It reveals an adversarial attitude that assumes any incident could end in litigation. If instructors follow MSF’s lead, such an antagonistic attitude is hardly conducive to being a “guide on the side” who makes training fun.

If the legend is meant as an abundance of caution, it still gives the impression that MSF is increasing hostile and defensive—and either that’s paranoia or they have reason to believe that any incident can end in a lawsuit.

Does MSF’s Incident Report Legend indicate training has become more deadly?

March 11, 2009

Two years ago, I reported that the Motorcycle Safety Foundation’s Incident Report now had a series of check boxes for injuries and included some disturbing ones: Loss of consciousness; Possible head injury; Possible Life-threatening injury—and a check box for “Death.”

At that time, I raised the question whether these injuries were occurring more often than we suspected—after all, why put a box and a category there if they weren’t expected to be used? Back then that was outré and many thought MSF was just expressing an abundance of caution.

A few months later, those dire boxes were needed in the Pennsylvania Motorcycle Safety Program (PAMSP) after a death and a case of quadriplegia occurred in two separate training crashes at two different sites about two weeks apart.

MSF has once again changed its incident report form—at least in Pennsylvania. That state now has a new and innocuous check box: Complaint of pain—the complete opposite of that oh-so-ominous death box.

According to the “PAMSP Incident Report Legend” document distributed and discussed at the 2009 Updates to instructors in Pennsylvania, the “Complaint of pain” box is for: “Authentic internal or other non-visible injuries and fraudulent claims of injury.” It doesn’t explain how instructors are to determine if injuries are fraudulent.

That, though, is the least of the information the Legend document contains. It’s an 8-page document of definitions, explanations, descriptions and clarifications intended to help instructors to accurately fill out the 2-page incident report form that has a total of 45 items to be completed.

Upon examination, Legend may be the most chilling and damning document ever issued by MSF because it takes as a given severe injury and fatality crashes are both expected to occur and to occur with regularity in rider training—and it assumes that these crashes will result in litigation.

It may do that because of an “abundance of caution” in the words of one administrator in a way that’s “excessive overkill” in the words of another. If this is the case, the instructions taken an everything-but-the-kitchen-sink approach.

Otoh, the million dollar lawsuit and the crashes in Pennsylvania in 2006 prove MSF has deliberately hidden severe and fatal crashes from the riding community, the public and government agencies. As a result, we do not know how many severe and fatal injuries have occurred from training crashes—and thus the Legend might portray exactly how bad it’s become. We just can’t know while MSF refuses any transparency at all.

Before we get to the specifics in the document, here’s the provenance:

A scan of the document was forwarded to me by someone who had access to the documents handed out at one of the Updates. According to a source, the same information in the document was conveyed verbally at the 2008 Updates. This year, it was written and distributed at the same event. The chief instructors spent the first hour of the day going through it line by line. Discussion was not encouraged. Internal evidence in the document suggests its not exclusive to Pennsylvania and it’s unknown who wrote the document.

Instructors were told that the document had to be posted in every shed at every site in the program and the purpose of the form, was “CYA”—Cover Your Ass. Whose derrière was to be covered—the instructors’ or the program’s or MSF’s or all of the above was not asked or the answer volunteered. While none of the chiefs directly said it directly, participants understood the purpose of the extensive form and its legend was to be forearmed against future litigation.

Because we do not know—and MSF has prevented us from knowing—how many of these crashes have occurred and how many lawsuits have been filed, are filed and how many settled, we cannot know whether the world Legend assumes is a misguided abundance of caution or a reality that MSF alone is aware of fully.

Odd—and more dangerous—crash configurations

It’s certainly not the training world that the several rider educators I contacted about the document know. That’s a world where virtually all crashes are single-vehicle and minor—tip-overs, step-offs, drop and flops and so forth—all of which almost always result in either no injury or minor injuries and very rarely a single fracture. Litigation is very rare and rarely proceeds.

The legend document, otoh, assumes a very different training reality. In the section where the instructors are to fill in their version of the crash, it says, “When multiple incidents occur rising out of a single incident and are identified as separate stabilized events, RiderCoaches shall complete a separate incident report for each student. The summary should make reference to each report.”

While the above is rather confused and incoherent, it gives the impression that multi-vehicle crashes happen regularly—and to support that idea these crashes are more frequent than anyone suspects, the document has “Sketch Symbols” for different crash configurations.

It has ones all rider instructors would agree would be needed: a moving vehicle in a straight line and a turning vehicle.

Then there’s others my sources agreed happened very rarely: a diagram for a rear-ender and another for an overtaking sideswipe. There’s also a box to represent an object and one for a parked vehicle. These also made sense to my sources—as long as it was a motorcycle in the staging area.

These not only represent the crashes rider educators are familiar with they also produce either no injuries or the typical injuries mentioned above—bruises, cuts, scrapes/abrasions, sprains—and, very rarely, a fracture or dislocation. And these are the crashes and injuries that have happened since the beginning of rider education.

“That’s one serious accident report”

However, those were the minority of the symbols depicted—and the majority included mystified the rider educators I consulted: head-on; overturned (the symbol indicates a somersaulting motion); head-on sideswipe; a pedestrian; right of way violation; overtaking turn; broadside; and spinout.

One said he doubted that a 125 cc or 250 cc (the sized of the overwhelming number of training bikes) were even capable of a spin-out. The Buell Blast, however, is capable of that. “You mean an endo?” is what two of my sources said when I described the symbol that looked like somersaulting for “overturned”. The motorcycle would have to be going very fast for that to occur. Iow, the additional symbols represent the kind of crashes that regularly in occur at far higher speed than what’s typical in range courses and/or happen in traffic.

According to these sources, these kind of crash configurations shouldn’t and couldn’t occur in the kind of training environment laid out in MSF’s curriculum where every possible obstacle has been removed and enough space on the range is available. They shouldn’t occur if instructors are properly trained and properly positioned to observe riders to prevent it and exercise paths-of-travel have been precisely designed to avoid anything like that from occurring.

Consequently, to say they were surprised by the list would be an understatement. All said they had never heard of such crashes as those symbols depicted ever occurring in their program. Ever. Why on earth were these symbols included?

Green Boy said, “that’s one serious accident report,” and so it had to be, he guessed, taken from something with much higher risks and put in there because of an insurance company or attorney insisted it be in there. But—like all the others—voiced similar sentiments to Birdwatcher who said, “If all that stuff is happening, that’s disturbing.”

Impression Management

The symbols alone, then, suggests it’s the abundance of caution approach—the “put everything in there just in case it’s ever needed, there will be a symbol for it” mentality. If this is the case, rider educators were quick to point out it had two effects: simply by including them in with common configurations, it creates the impression in instructors and administrators minds that these kind of crashes do occur—or else why include symbols to diagram them? Which reminded me of my own thoughts back in 2007 about why death, life-threatening injuries, etc. had check boxes.

The second effect is that it creates the impression for those who use the legend or even see it that these configurations are both normal and expected in training. Horse pointed out that even if MSF said it was for an abundance of caution, a plaintiff’s attorney would respond, “hey, you have a symbol for it, you must think it could happen.” He thought the mere fact the Legend includes such configurations could weaken a program’s case—especially if one of that kind had occurred. The Legend, of course, would be part of discovery in any lawsuit—even if it didn’t happen in a state program that uses that particular document because of MSF’s role as curriculum publisher—and author of the definitive incident report form.

At least one administrator worried about the Field of Dreams Effect—if you create the diagram for those kind of crashes and the expectation they both happen and aren’t any more serious than the common configurations, those kind of crashes will happen.

If the Legend is supposed to be an abundance of caution, it certainly has created an impression management problem.

The abundance of caution theory does seem to have some weight then, but is it true that these crashes don’t happen just because these crème de la crème of rider educators weren’t familiar with them?

Truth is stranger than abundance of caution

The million dollar settlement MSF tried to hide says no: It was one of those crashes that just don’t happen. In that incident the student ran off the range and hit a pedestrian—that diagram, had the motorcycle had the Legend “Sketch Symbols” would’ve used the moving vehicle, parked vehicle—not meaning a motorcycle in the staging area—pedestrian and area of impact symbols.

As far as the somersaulting vehicle symbol—that would’ve been used in the crash in Eastern Pennsylvania that resulted in the quadriplegia when the rider failed to make a turn (moving vehicle), hit a berm (object) as the rider left the range, motorcycle and rider became airborne and somersaulted (overturned) down the hill. The rider hit her head on a rock (object and area of impact) and somersaulted further down the hill (overturned) and the motorcycle came to rest on top of her (area of impact).

Those symbols that mystified the best of rider educators, then, may not be so useless after all. Rather than an “abundance of caution”, they’ve already been needed to properly describe events that have ended in tragedy. Birdwatcher should be disturbed, then, because these kinds of accidents are happening. We just don’t know how many or if the symbols for broadside, head-on, head-on sideswipe and the others have also been utilized already.

Additionally, over a year ago two administrators analyzed the compact range exercises in terms of paths of travel. Both had noted that some exercises could have problems unless timing was expertly managed—which they said would be very difficult with only one instructor on the range. That could result in some of the other crash configurations represented in the legend such as head-on, head-on sideswipe, ROW, overtaking turn and broadside.

It is the very kind of crashes these rider educators had said don’t happen in their programs—the multi-vehicle, higher speed, angle, head-on and into objects ones—that we know have happened. And they are exactly the kind of crashes that can and have caused the kind of severe and fatal injuries MSF describes in the next section of the Legend, No. 18: RiderCoach Description of Student Injury. That’s the next entry.