Keith Kessler Goes the Distance
The Hoquiam lawyer fights for injured cyclists
Published in 2016 Washington Super Lawyers magazine
on June 10, 2016
Updated on June 30, 2016
Seattle is often touted by national media and cycling organizations as one of America’s most bike-friendly cities. But Keith Kessler sees another side to the story.
The Hoquiam lawyer is a nationally renowned authority on roadway safety. He has written extensively on the issue—most recently in “Bicycle Litigation,” a pamphlet co-authored with Daniel Laurence, a colleague at Stritmatter Kessler Whelan Koehler Moore Kahler, and published by their firm in 2015.
“We’ve got roads and streets that are set up, basically, for cars, trucks and buses,” says Kessler, “and they forget about the fact that it’s not bicycle-safe. You’ve got cracks, you’ve got ruts, and you’ve got things that will throw cyclists.”
Kessler’s reputation as a lawyer who goes the distance for cyclists was firmly established after he represented two bicyclists hurt in separate incidents on Seattle’s state-operated Montlake Bridge. When steel grate panels on the 1925 span were replaced as part of a seismic retrofit in 1999, the seams between the new panels in some places exceeded the specified half-inch maximum width. A cyclist had reported the problem after suffering relatively minor injuries, but it hadn’t been fixed by the time an environmental attorney and serious cyclist named Mickey Gendler crossed the bridge on Oct. 28, 2007.
Gendler’s front wheel dropped into a nearly inch-wide gap between two grates. Thrown over the handlebars and onto his back, Gendler was rendered quadriplegic. The $8 million that Kessler won for him from the state Department of Transportation in 2010 was one of the largest settlements for an individual in state history.
Two years later, Kessler represented cyclist Lan Remme, whose accident on the same bridge left him wheelchair-bound. A sidewalk panel had dropped, over time, 2 inches below the abutting panel. Remme’s settlement from city and state: $4 million.
In 2009, Kessler co-founded the American Association for Justice’s Bicycle Litigation Group. Members discuss bicycle safety and lawsuits, as well as “how best to present a cyclist case.” Kessler can also offer advice on gaining access to accident reports, having won a landmark case in 2009, Gendler v. Batiste, which was upheld by the state Supreme Court three years later. Kessler had asked the state patrol for accident reports regarding Montlake Bridge and the Attorney General’s Office said no. To acquire the reports and successfully litigate Gendler’s case against the state, Kessler had to sue Washington State Patrol Chief John Batiste.
Back in 2003, the U.S. Supreme Court had ruled in another case—Pierce County v. Guillen—that accident reports are public information, except when law enforcement is gathering the information to seek federal funding for road improvement projects. The state patrol was interpreting that exception more broadly than Kessler argued was reasonable. When he won Gendler v. Batiste, he says, “that settled it once and for all.”
What still isn’t settled, according to Kessler, is how Seattle will keep cyclists safe. The city has a growing number of bicycle commuters, estimated at 7,500 by Commute Seattle. While Seattle encourages bike commuting, offering amenities such as added bike racks and a fledgling bike-sharing program, Kessler says it does not regularly inspect sidewalks and roadways for dangers to cyclists.
According to Kessler, the city says it responds when notified of a potential hazard—an approach he calls “reactionary.” He says, “We need to have a provision for annual inspections of our sidewalks and streets, and—to the extent they can do it—roving crews, so we’re catching problems as they develop.”
Kessler is encouraged, however, by the success of the Second Avenue Protected Bike Lane Demonstration Project, which opened in 2014, in providing bicyclists a zone of safety in the mix with trucks and cars. And he is hopeful that the long-range plans of Scott Kubly, director of the Seattle Department of Transportation since July 2014, will bring better accommodations for cyclists. Meanwhile, Kessler offers a few words of advice to all cyclists:
“Assume drivers don’t see you.”
Did you know that … ?
According to Washington state law:
• Bicycle helmets are not required
• Wearing headphones and earphones is not prohibited
• Bicyclists are not required to ride in bicycle lanes
(Many municipalities have specific laws on these matters)