Legally Speaking - The real daily distraction
A few weeks ago (see Can’t we do better?), I posed the question “What do you think can be done about cyclist safety?” in response to a question from C.S., who asked
I received many responses from Legally Speaking readers; however, none of the responses directly addressed C.S.’s question about what his club can do, so I posed the question again (see A time for thanks): What steps can a club take for bicycle advocacy? What can a club do to improve bicycle safety, protect vulnerable road users, and stop aggression against cyclists?
This time, I received a handful of responses. This points to an interesting problem. We all have our own ideas about what an individual cyclist can do to be safe — ideas which can sometimes be the subject of intense debate amongst cyclists — but it seems that few, if any of us, have given thought as to how we can organize to advance our cause, and what we would ask for once organized. Perhaps that is the nature of cycling — although we all love cycling, we sometimes have very little else in common. Given that, perhaps it’s not surprising that we might not always agree on what needs to be done.
And yet, we all apparently do agree that something needs to be done, even if we haven’t quite figured out what that something is. And maybe that agreement is a start. With that in mind, let’s take a look at some of the comments that came in.
First, C.W. wrote to District Attorney Charles Branson regarding his decision not to file vehicular homicide charges against the driver who killed Lt. David Dillon. Mr. Branson wrote back to C.W., who wanted to share the response with me:
Many attorneys, including myself, might disagree with Mr. Branson’s interpretation of Kansas case law. One of the elements that is needed to prove vehicular homicide is a “material deviation” from the standard of care that that a reasonable person would observe under the same circumstances. While the Kansas Supreme Court has indeed said that this “material deviation” requires something more than simple negligence, it has also been quite clear that gross negligence is not required—a material deviation falls somewhere in between.
Thus, simply failing to notice a cyclist on the road, while negligent, does not rise to a “material deviation.” But what if the driver fails to notice a cyclist on the road because the driver is simultaneously adjusting the radio while talking on the cell phone—is that level of distraction still only “simple negligence”? Or is it something more than simple negligence? Does it fall somewhere between simple negligence and gross negligence? District Attorney Branson apparently believes that it does not amount to anything more than simple negligence—even though there is nothing in Kansas v. Krovvidi to support that belief. Inattentiveness alone, without something more, is not a “material deviation” from the standard of care a reasonable person would observe. However, in Lt. Dillon’s death, there was “something more” than inattentiveness—there was simultaneous operation of two different electronic devices. Does that amount to the “additional aggravating factors” required by the Kansas Supreme Court? According to the Court,
Under District Attorney Branson’s interpretation of Kansas case law, operating a motor vehicle while simultaneously talking on the phone and adjusting the radio does not amount to more than simple negligence. Perhaps that reflects a recognition that the average driver is so distracted by electronic devices, personal grooming, and other activities that distract from driving that doing so does not amount to a “material deviation” from the standard of care of a reasonable person—or at least, the average person. Perhaps it reflects a pragmatic recognition that a jury composed of distracted motorists would not be likely to find that a fellow distracted motorist materially deviated from the standard of care of a reasonable person.
But perhaps it’s also an abdication of duty. If the District Attorney is unwilling to argue that distracting oneself by talking on a cell phone while adjusting the radio satisfies the “additional aggravating factors” the Kansas Supreme Court is looking for, then the District Attorney may in fact be establishing that such behavior is nothing more than simple negligence by sending the message that drivers won’t be prosecuted for vehicular homicide if they kill somebody while busy distracting their attention away from the road with electronic devices.
This gets to a point G.K. made about sending a different kind of message:
G.K. isn’t the only reader who believes that society needs to send a message to those who willfully distract their attention away from the road:
I also received a response from an attorney who believes that District Attorney Branson interpreted the law incorrectly, but nevertheless made an understandable decision, and as other attorneys (including District Attorney Branson) have argued, lays the blame for the situation at the feet of the legislatures:
Not every reader, however, agrees that the laws must be changed. Offering a different perspective, S.I wrote:
S.I. has touched on a point addressed in a New York Times article on distracted driving—everybody’s doing it. And as long as everybody’s doing it, it’s not likely to be taken seriously, even when it results in fatalities.
Of course, there was a time when drunk driving was socially acceptable too — everybody did it… until the victims of drunk drivers organized and convinced the public, and the legislatures, and the criminal justice system, that drunk driving ought to be treated as a serious offense. But what about S.I.,’s argument that drunk driving is fundamentally different from distracted driving? Is it fundamentally different, or is the difference one of perception rather than reality?
We know that driving while using a cell phone results in a level of driver impairment equivalent to a .08 blood alcohol content — in other words, if you’re on your cell and driving, you’re impaired as you would be if you were DUI. Of course, as S. I. points out, distraction sometimes happens without our even being aware of the distraction. But nobody makes a phone call — or applies make-up, or reads a newspaper — without being aware that they’re doing so. Driving inattentively and failing to notice that the light is red—an issue discussed in Kansas v. Krovvidi — is an entirely different situation from being willfully distracted. The question raised by the cases of Lt. Dillon and Dr. Farrar, and countless others before them, is whether we as a society are willing to continue to tolerate those drivers who willfully distract their attention away from the road.
Dec. 5, 2008
(Research and drafting provided by Rick Bernardi, J.D.)
I’d like to thank everybody who has contacted me to request my appearance at their event. I will be speaking as extensively on "Bicycling & the Law" this year as my practice will allow, and will make plans to appear before any club, bike shop, or other engagement that is interested in hosting me. If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at email@example.com (and if you would like to contact me with a question or comment not related to my speaking tour, please drop me a line at firstname.lastname@example.org). I'm looking forward to meeting as many of my readers as possible this year.
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