Jury awards $1.05m to cyclist hit by bus driver in Tigard

Heading south on Highway 99 in King City where Michael Kruss was shot.

On Monday, a Multnomah County jury awarded $1.05 million to a Tigard resident who was run over by a bus operator while riding his bicycle on Highway 99.

It’s a victory, but a reminder that cyclists and their advocates still face an uphill battle when it comes to establishing a legal right to the road.

The collision happened on October 7 just before 9:00 a.m. Michael Kruss, a 62-year-old Tigard resident, was riding his bike southbound on the Highway 99 bike lane. As he passed SW Versailles Road and saw a bridge over the Tualatin River (Google Map) arrive, Kruss had a choice to make — because the bike path at this Oregon state-owned facility abruptly stopped about 100 feet in front of him.

We all know that feeling: are you staying on the main road and risking being closer to other vehicles? Or are you betting on a sidewalk behind the guardrail full of debris, vegetation and who knows what else? In this case, Kruss, a former All-American swimmer, opted to stay in the lane.

As Kruss continued south, Yamhill County Transit bus driver Kelly Bigelow came up behind him. According to a driver statement released during the six-day trial, Bigelow saw Kruss in the bike path. But the driver claimed Kruss was “wobbly” in the bike lane and riding “on or near” the strip of white paint that separates the lanes.

“The driver said he slowed down due to the behavior of the driver,” read the driver’s statement recorded by First Transit, the private company that operates Yamhill’s transit system. “[Bigelow] looked up to check the traffic ahead and his distance from the bridge. As his attention was diverted from the cyclist, he heard a loud thump on the side of the bus.

This “thump” was that Kruss was punched and then knocked to the ground. The impact resulted in serious injuries, including a broken collarbone and scapula that required immediate surgery. Kruss also suffered a broken sternum, nine broken ribs and several severe bruises. He spent 17 days in hospital, had three surgeries and racked up more than $318,000 in medical bills.

They tried to blame the cyclist.

Adding insult to injury, lawyers for First Transit denied it even happened and blamed Kruss for the collision. Without the legal team at Kruss, led by Scott Kocher of Forum Law Group (a financial backer and contributor to BikePortland), we might never know the truth.

Forum Law Group sued Bigelow and First Transit. Their complaint claimed that the driver’s actions resulted in Kruss’ injuries and that First Transit failed to adequately train and supervise its employee.

First Transit denied the allegations. The injuries and damages suffered by Kruss “were caused by his own negligence,” said a filing by First Transit attorneys Bullivant Houser Bailey. They claimed it was Kruss who lost his balance on his own, didn’t see the bus (which was behind him), didn’t stay in the bike lane, etc.

Tigard bike map.

First Transit hired an expert witness, a retired leader of the Portland Police Bureau’s traffic accident reconstruction team, to back up their claims that Kruss was not hit by the bus from Bigelow.

A key piece of evidence in the case was a black smear mark on the bus. Even though the mark matched the height and composition of the rubber on Kruss’ handlebar grip, First Transit’s expert witness tried to deny it. It was not until Kocher’s cross-examination of the retired PPB officer that the truth came out.

Kocher and his team were also able to demonstrate to the jury that First Transit’s training requires bus operators to leave four feet of space for cyclists as they pass. Throughout the trial, First Transit has not admitted any responsibility for what happened.

Pavement design was also a factor (the official Tigard Bike Map lists this section of the highway as a “difficult connection”) in the collision. Not only is it a 45mph speed limited national highway with an unprotected cycle lane, but as you can see in the images the cycle lane strip narrows from the standard eight inch width to just four inches before the bridge (the legal width of one shoulder). This is a common and frustrating ODOT treatment that fails to respect the rights and safety of cyclists and puts them in a precarious position. ODOT also failed to maintain a potential alternate route across the guardrail.

Even with the blatant negligence of the ODOT infrastructure, Kocher did not bring them into this case given the presence of strict “discretionary immunity” laws and other complications. Kocher felt his case was strong enough to win without getting mired in the mud with Oregon State.

Kocher felt it was entirely reasonable for Kruss to establish his presence on the white line before the bridge as he had decided to share the lane. It was safer for Kruss to start moving to the left of the shoulder well before the bridge so he wouldn’t swerve last second where the road narrows at the guardrail.

Scott Kocher (middle) and Michael Kruss (green shirt) after the verdict with other members of the legal team. (Photo: Forum Law Group)

Given the width of the roadway and the four foot passing distance requirement, the safe action for the bus operator would have been to slow down and wait behind Kruss until the road s widens again after the bridge. But the bus operator (who died of Covid before he could be deposed or take part in the trial), chose to make the dangerous pass.

After hearing the facts of the case and listening to arguments from both sides, the jury sided with Kruss. But while they awarded him $1.295 million for economic damages and $318,000 for medical costs, they also said Kruss shared 35% of the fault. This dropped its price to $1.05 million.

Kruss had a taillight and rode in a road-legal position in dry, daytime conditions. The fact that he was found to share any fault in this collision is very regrettable.

“This case proves two things,” Kocher told me. “First, the justice system is not broken. It is a success. Is the system perfect? ​​No, but for all those who say there is no justice, it is not true.

“And second,” he continued. “Even in 2022, we still have a long way to go to defend our right to the road.”

Earnest L. Veasey