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One Million Dollars for Texas Road Defect

The Texas Department of Transportation had offered cyclist Mike Bagg $0.

Recently, attorneys with the Bike Law network took a case to a trial against a titan of a defendant: the Texas Department of Transportation. TxDOT was represented by the Attorney General’s Office, one of Texas’ largest legal teams. We had a great client, but it was a tough case to prove. So tough, in fact, that TxDOT offered nothing to settle the case before trial.

 

The Crash that Altered Mike Bagg’s Life

On a sunny Sunday in October, our client, Mike Bagg, a 56-year-old surgeon, was riding his bike in a bike lane in El Paso. It turns out the bike lane had a gap between two concrete panels. The gap was the right size to trap a bike tire and take control of the front wheel from the rider. The gap had once been filled with filler, but that had long since eroded away.

 

Road defect dangerous to cyclists

 

Mike’s injuries from the crash were significant, both from a pain standpoint and his ability to support his family as a husband, father, and primary income producer. Before his crash, Mike was an active person and productive surgeon, treating 40-50 patients per day. After his crash, he underwent two major surgeries and a year of intensive physical and occupational therapy, relearning how to walk, and incurring medical bills of approximately $70,000.

 

Injured cyclist Mike Bag

 

Our Call to Action

Shortly after the crash, Mike and his wife, Carrie, reached out to our firm to see if we could help and prevent similar harm from occurring to anyone else. By hiring our firm, Mike and Carrie tapped into the knowledge base of the entire Bike Law Network. We wrote a letter to TxDOT, letting them know about this crash and asking for an investigation. Shortly thereafter, TxDOT responded that they were not at fault.

We filed suit knowing the fight would not be easy. To win against TxDOT, we needed to prove that it was grossly negligent, had actual knowledge of this hazard, and chose not to fix the hazard with a conscious indifference to the safety of others. We essentially needed to get inside TxDOT’s departmental mind to show it was aware of this hazard before Mike’s crash and did nothing to fix it.

We sent TxDOT a document request to investigate if it had any knowledge that others had been hurt like Mike before his crash. TxDOT responded that they had no notice that anyone had been hurt by this gap hazard and had no responsive documents. Strangely, TxDOT didn’t seem to even have a copy of our claim letter or their own denial letter.

 

TxDOT cycling injury

 

At this point, we had to dig a bit deeper. After further investigative work, we learned that a nearby bike shop had heard that other people had crashed in this bike lane because of the gap. I met with the shop’s manager, who allowed us to use the shop’s Facebook page as a call to action for anyone else who had crashed. Numerous people reached out. Some had crashed after Mike, while others had crashed before but hadn’t taken any steps to make TxDOT aware of the condition. We were striking out until we found Sergio Martinez.

Sergio, an architect, and bicyclist crashed two years before Mike in the same spot and manner. He was knocked unconscious and walked away feeling lucky that he was not hurt worse. He didn’t want anyone else to get hurt and wrote a letter to the chief engineer of TxDOT. The letter described what happened to him and pleaded for TxDOT to fix this hazard. Sergio put his name and return address on the letter and mailed it.

 

Bike Law verdict

 

After we connected with Sergio, he was kind enough to serve as a witness in our case. He produced a copy of his letter that was stored on his computer. We sent his letter to TxDOT’s attorney and asked why they didn’t produce a copy for us. Their answer? They do not have a record of having ever received Sergio’s letter.

With Sergio’s letter in hand, we could show that TxDOT had notice of the hazard but didn’t repair it before Mike’s crash. The case would hinge on whether a jury believed that Sergio sent his letter and TxDOT simply lost, ignored, or mishandled this notice.

Before heading to trial, we asked TxDOT if they wanted to take a run a settling the case. They responded that they were not going to offer a dollar to settle the case.

 

The Showdown at Trial

On the Monday morning of the trial, we appeared before Judge Melissa Baeza, who called the first panel of prospective jurors. Thirty-five local citizens of El Paso were led into the courtroom.

 

Bike Law courthouse

I asked each person about their thoughts on a variety of issues that may relate to our case. Through this discussion, I learned that the people of El Paso are genuine, principled, and willing to consider holding people responsible for their actions.

My law partner, Stephen, has tried over 170 jury trials. There is no substitute for experience and his insight allowed us to pick the best jurors that we could have asked to seat from our panel.

We started our presentation by calling Mike to the stand. Stephen walked Mike through testimony about the crash and the toll it took on him as a professional, husband, and father.  Mike testified to the jury about his long fight to recovery.

Sergio followed as our next witness, testifying about his own crash and the specific warning letter he sent to TxDOT.

To prove our grossly negligent case against TxDOT, we called Chad Chairez, the current TxDOT maintenance supervisor of the area where Mike’s crash happened, to the witness stand. Through cross-examination of Mr. Chairez, we were able to establish that TxDOT’s El Paso Office was not aware of any complaints or investigations, including Sergio’s letter. Further, TxDOT was aware that the gap filler in the road’s expansion joints commonly deteriorates, yet it performed no maintenance on the bike lane from 2011-2018 (years before and after Sergio’s and Mike’s crashes).

We rested our case after calling Mike’s wife, Carrie, to explain the full impact of this crash on their family. She testified about how Mike had to spend valuable time towards his personal recovery, and this time was normally spent treating his patients and with his family, including his special-needs son.

 

TxDOT Attempts to Defend the Indefensible

In response to our case, TxDOT harped on having no record of receiving Sergio’s letter and, therefore, no notice of this hazard. TxDOT also suggested that Mike could have ridden his bike on the adjacent sidewalk instead of in the bike lane.

In closing arguments, I responded that the chance of Sergio’s letter being lost in the mail twice – once to TxDOT and, if TxDOT was to be believed, on its “return to sender” trip back to Sergio – was one in tens of thousands.

I also noted that it’s unnerving to hear that TxDOT’s official response to this crash is to say that bicyclists should ride on sidewalks and not in bike lanes. I let that position sink in for a moment with the jury.

Finally, I told the jury that they should side with TxDOT if they approve of the way that TxDOT has acted relating to this crash. TxDOT has pointed fingers, made excuses, denied any responsibility, and chalked this up to “accidents happen and it’s no one’s fault.” I asked the jury to compare this position to Mike, who has taken responsibility for everything in his life since he began cutting grass at age 10, continuing to college at West Point, serving in the Army, and ultimately committing himself to Carrie, his children, and fellow practitioners and employees in his urology practice.

 

Justice Prevails

After a few hours, the jury found TxDOT grossly negligent, and that Mike was powerless to prevent the crash. The jury awarded Mike $1,050,000.00 in damages, which accounted for compensation in every category requested. The verdict was unanimous. The verdict form is attached in full here.

 

Once the jury was out of the room, I looked at Mike and shook his hand. The relief on his face said what he felt. He was all smiles, vindicated that the crash wasn’t his fault as TxDOT had constantly insinuated.

 

The Many Thanks Deserved

This win would not have been possible without the joint effort of our firm’s team and the collective knowledge of the Bike Law Network. We love taking cases to trial, and our success, without question, is because of our strong team of attorneys and support staff and our shared commitment to protecting bicyclists from dangers on the road.

Finally, we could not have achieved this win without the trust of our clients. At the end of the trial, Mike’s wife, Carrie, told us through tears, “[t]hank you for taking our call…” No, Carrie, thank you for placing your trust in us. Every initial call from a client is an honor and privilege. We do not take this responsibility lightly.
TxDOT recently filed post-trial motions for a new trial and to toss out this verdict, which the Court denied.

If you’ve been in a bike crash and need help from our Texas bicycle accident attorneys, contact us right away. 

 

Charlie Thomas is a partner with the law firm of Huber Thomas, LLP. He serves as the chairperson Bike Easy’s Policy & Design Committee as well as the chairperson of the Louisiana State Law Institute’s Vulnerable Road User Subcommittee. Charlie is also the passionate representative for Bike Law in Louisiana, Texas, and Mississippi. If you would like to hear what else we’re else doing at Bike Law, drop us an email at [email protected] and we’ll add you to our quarterly update list. 

 

 

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