The Washington State Court of Appeals unanimously upheld a Thurston County judge’s ruling giving Gendler, injured in a 2007 mishap when his bike wheel wedged in a too-wide gap on Montlake Bridge steel grating, access to information on previous bicycle accidents there.

Gendler, 58, who in a separate suit won an $8 million settlement from the state over the accident, sought the records to show that the state had known of the danger since 1999, when it was created during a seismic retrofit of the bridge. Even before the retrofit was finished, a cyclist suffered a similar — although not as injurious — accident in the same gap.

The state argued it was prevented from turning over accident records by federal law financing gathering and analysis of accident data but barring the information from being used in lawsuits against the state.

The Appeals Court disagreed:

The WSP [Washington State Patrol] claims that federal law, 23 U.S.C. § 409 (2005), prohibits it from disclosing the records to Michael Gendler unless he agrees not to use the information in litigation against the State. Because RCW [state law] 46.52.060 imposes a duty on the WSP to create and provide such public records, and because the federal privilege applies only to the Washington State Department of Transportation (WSDOT) not the WSP, we affirm. We also award Gendler his attorney fees and costs for this appeal.

As attorney Mike Schechter puts it in the Local Open Government blog, the ruling means “that the State Patrol cannot hide behind a memorandum of understanding (“MOU”) with the State Department of Transportation (“WSDOT”) and WSDOT’s federal privilege under 23 U.S.C. §409, barring use of collision data in lawsuits.”

Beyond Gendler’s case, the ruling has ramifications for any citizen seeking to show that faulty construction or maintenance of roadways contributed to an accident. In that sense, Gendler’s victory is a win for us all.

As Schechter further notes:

The federal privilege is intended to allow WSDOT to compile and analyze accident data to better implement highway safety measures funded by the federal government without concern that such analysis would be used to support lawsuits against the State.

While we understand the thinking behind such a provision — the state’s “analysis,” after all, could certainly be faulty or biased — we are pleased that the court drew its distinction. Raw data, collected with taxpayer funds by public agencies, should be available to the citizens who footed the bill in the first place. And on principle in a democracy, government information should be transparent in all forms.

Another reason to give thanks on this holiday of 2010.

Three years ago, on Oct. 28, 2007, a tragedy of a more irreversible nature befell Mickey Gendler. The prominent Seattle environmental attorney was riding over the Montlake steel bridge when his front tire caught in a gap in the metal grating. Gendler went over the bars, cracked his helmet in two, and was instantly paralyzed from the shoulders down.

As fate would have it, the very next day Gendler won big in court. A city hearing examiner, persuaded by Gendler’s incisive logic, ruled that a huge parking garage planned by the Woodland Park Zoo in Phinney Ridge was illegal, bringing to a close a bitter three-year citizen battle.

The accolades poured in, but the celebration had a somber undercurrent. Mickey could smile and talk but — confined to a bed at Harborview Medical Center — do little more. His injury was at the C3-C4 vertebrae, making him a quadriplegic or in the current lexicon a person with tetraplegia. On the positive side, his spinal cord, although severely injured, was not severed, holding out the possibility of recovery that to this day keeps Gendler motivated in physical therapy.

Thrown from your bike one day, a lawsuit winner the next. You don’t have to be a lawyer or cyclist to know that is how a flip of fate’s lever works.

Except that it wasn’t just fate that paralyzed Mickey Gendler.

Seattle Times article a breakthrough

The gap in the bridge grating had been a hazard to cyclists known to transportation authorities for years — almost from the day it was created by a Department of Transportation “seismic retrofit” in 1999.

The flaw came to light after The Seattle Times ran an article on Gendler’s mishap and other cyclists came forward with stories of similar accidents caused by the same gap. That led Gendler to seek accident records from the state, which balked due to a federal law funding states to do data collision analysis but exempting the analyses from public disclosure. Gendler argued he did not want the analyses, just the data. The Thurston County judge in his suit sided with Gendler and his lawyers, Keith Kessler and Charlie Wiggins.

It turned out that even before the bridge modification was completed, a cyclist suffered a similar accident and reported it to the state Department of Transportation. But nothing was done. The cyclist did not suffer injuries as severe as Gendler’s, and DOT authorities considered the risk low because cyclists typically used the sidewalk to cross the bridge. (Cyclists have the legal right to ride the grating, however — a point Gendler also clarified in court.)

It took nearly three years of legal persistence for Mickey Gendler to prove his point — and win greater protection for all cyclists in the process. The state settled, awarding Gendler $8 million for an entirely preventable cycling accident. That’s a lot of money and will pay for the care required for Gendler, 58, to get through his days — for the foreseeable future, at least.

There’s just one problem: Mickey can no longer ride his bike.

No ordinary cyclist

Calling Mickey Gendler a cyclist is like calling a marathoner a jogger.

Among notches in his belt is one of the most challenging amateur road rides in the nation — the Markleeville Death Ride in the northern California Sierra, an endurance feat covering 129 miles with 15,000 feet of elevation gain. Few cyclists can do the Death Ride at all. Mickey’s done it twice — including July, 2007, just three months before his injury.

He rode STP — the near-200-mile Seattle-to-Portland ride — three consecutive times from 1989 to 1991. All one-dayers. He’s done RAMROD, the punishing Ride Around Mt. Rainier in One Day — five times.

Then there are his assorted European monster rides, up the Alps and Pyrenees along routes familiar to the world’s top cycling pros in the Tour de France and other Grand Tours. One memorable route took him up 13,000 feet of elevation gain over 66 miles. Gendler owned two elite custom bikes — one from renowned Seattle bike builder Glenn Erickson and the other a $5,000 titanium Serotta, which he was riding at the time of his accident.

Gendler’s cycling exploits in part explain why he was confident about riding over metal grating. He’s done it hundreds of times — more on the Fremont Bridge than Montlake, but he knows how to negotiate grating even in rainy weather. Grating “is nerve-wracking at first because of the way it looks, but it’s no different from riding on the road,” he said. At least, under normal circumstances it isn’t.

So ingrained in cycling is Gendler’s consciousness that he even thinks of his legal cases in biking terms. When we discussed one of his court victories, Gendler recalled Lance Armstrong’s stirring comeback in the 2003 Tour de France — “the one he almost lost.”

Commentators wrote off Armstrong, suffering from dehydration and losing time, after rival Jan Ullrich pulled away from him early on the brutal Col du Tourmalet, a penultimate climb in a decisive stage. Armstrong came back to win and was later asked when he knew Ullrich was in trouble.

“When he attacked on Tourmalet,” Armstrong answered. The subtext: Lance knew Jan was desperate. If Ullrich had been confident, he would have waited till later in the stage to put the screws to Armstrong. Instead, Ullrich hoped his early move would break Lance’s spirit and lay him under.

Gendler kept the Armstrong strategy in mind time and again in pivotal cases where his side seemed doomed to failure. It’s not a bad philosophy for life, for that matter.

What $8 million buys

Under terms of the settlement, the state admits no guilt. That’s what $8 million buys you these days.

The other thing $8 million buys is the assurance that Gendler’s accident won’t happen again — not on the Montlake Bridge, and hopefully not anywhere. Although it took nearly two years, the state finally filled the “Gendler gap” on the Montlake Bridge with epoxy. One can assumed that DOT now has a “Gendler specification” in place for inspecting and maintaining grating that protects against the kind of accident he suffered.

What $8 million does not buy, of course, is the ability to ride a bike again. Gendler has made impressive progress since his accident, to the point where he can walk short distances with a walker. But most of the time he is confined to his wheelchair, and life’s simplest procedures are a laborious exercise.

Gendler has a puckish sense of humor that along with a natural buoyancy has kept him from being bitter about the accident, and he has been chronicling his recovery for family and friends in a series of remarkably moving and inspirational email installments. As tragic as his mishap was, a lot of positive has come out of it because of who Mickey Gendler is and what he represents.

So the next time you feel the wind in your face, the next time you climb a challenging hill … the next time you ride your bike just for the sake of going out for a ride, think about Mickey Gendler and be thankful. Because even though he can no longer ride, it’s the cycling spirit in riders like Mickey that has made, and will continue to make, the world more hospitable to — and safer for — bicycles.

Further reading ————————

Seattle Times coverage of settlement.

SeattlePI.com article on settlement.

Seattle Weekly blog post.

“Breakthrough” article from Seattle Times.