A Path To Justice

Rory Tomasello was, by all accounts, a talented, “intensely bright” and creative young man. An aspiring actor and playwright, Tomasello was studying philosophy at De Anza College in Cupertino while he tried to figure out what to do with his life; he had already outgrown the small town confines of Morgan Hill, California, and was considering moving north to San Francisco to finish college.

On October 23, Tomasello’s bright future came to a sudden end in a Morgan Hill crosswalk. Tomasello was on his bike, riding north along the West Little Llagas Creek Trail, a walking and biking trail that was dedicated on June 9. At West Edmundson Ave., a 4 lane street divided by a median strip, the trail continues north through a mid-block crosswalk, which connects to the trail on the north side of West Edmundson. Entering the crosswalk, Tomasello rode to the median strip, where he waited for traffic to pass. A driver stopped for him at the crosswalk, and he proceeded to cross. As he was crossing the final lane, a driver approaching in that lane did not stop, and he collided with the left front of her Cadillac SUV.

Tomasello survived the collision, but sustained a serious head injury, and by the time police and EMT’s arrived on the scene, he was disoriented. After he was placed in the ambulance, Tomasello lost consciousness. Although he opened his eyes a few times in the ambulance, he never regained consciousness. His skull had been fractured in the collision, and his brain had swelled. Three days later, Tomasello was declared brain dead. He was 22 years old.

In the aftermath of Tomasello’s death, confusion reigned, as police attempted to sort out the legalities to determine who might be at fault. After noting that police were still investigating the collision, Police Chief Bruce Cumming cryptically remarked that nobody had been cited at the scene “for both ethical and common sense reasons.”

Did he mean that it would be unethical, and in violation of “common sense,” to ticket the driver? Or did he mean that it would be unethical to ticket the cyclist? Or, perhaps, did he mean that it would be unethical, and in violation of “common sense” to ticket anybody before an ongoing investigation was complete?

The only thing that was certain was that his meaning was opaque. What was uncertain was who, if anybody, had violated the law. Was Tomasello at fault? Was the driver at fault? Or were they both at fault?

The legal issues revolved around whether Tomasello was legally riding within the crosswalk, and incredibly, whether the driver was legally obligated to stop for Tomasello. In California, cyclists may legally ride on sidewalks and within crosswalks; while doing so, cyclists have the same rights and duties as pedestrians (but cyclists must yield the right of way to pedestrians). However, California authorizes municipalities to prohibit cyclists from riding on the sidewalk and/or within the crosswalk. Where laws prohibiting cyclists from riding on sidewalks and in crosswalks are in effect, cyclists must dismount and walk their bikes while on the sidewalk or in the crosswalk.

In Morgan Hill, riding within a crosswalk is generally prohibited by the Municipal Code; however, there are two exceptions to this proscription. First, if a cyclist is under the age of thirteen, the cyclist may legally ride within a crosswalk. And second, if the City Traffic Engineer has designated the crosswalk as a “bicycle path,” cyclists may ride within the crosswalk.

These exceptions create odd discrepancies within the law. If a cyclist is under the age of 13 and riding within the crosswalk, the cyclist enjoys the full legal protection afforded to pedestrians. Drivers approaching a crosswalk in which an under-thirteen cyclist is riding are directed by law to stop and yield the right of way to the cyclist. However, there is no such direction to drivers regarding over-thirteen cyclists.

To compound problems for the cyclist who chooses to ride across, because the crosswalk is not an intersecting roadway, the cyclist does not enjoy the right of way that would be afforded to a vehicle operator crossing an intersection. Therefore, the over-thirteen cyclist who chooses to ride through a crosswalk where prohibited enjoys neither the legal protections of a pedestrian nor the legal protections of a vehicle operator.

The Municipal Code also distinguishes between over-thirteen cyclists who are riding within a crosswalk that is declared a “bicycle path” by the City Traffic Engineer (they enjoy the protected legal status of pedestrians) and over-thirteen cyclists who are riding within other crosswalks (they do not enjoy the protected legal status of pedestrians).

One might ask how drivers can be expected to make all of these fine distinctions regarding when they’re required to stop. In fact, they can’t make such fine distinctions, and, as we’ll see, they’re required to stop regardless of the cyclist’s age or legal status. What the Morgan Hill law actually does is shift at least some of the fault for any crosswalk collisions onto the over-thirteen cyclist who is riding within a crosswalk that is not a declared “bicycle path.”

Although the crosswalk that Rory Tomasello was riding in is apparently not a declared “bicycle path,” it is an extension of the trail across the roadway, connecting the portion of the trail south of the roadway with the portion of the trail north of the roadway. Without the crosswalk, the trail would be two unconnected trails. And in fact, cyclists traveling south are notified by a sign to dismount and walk across the crosswalk. However, there is no corresponding sign notifying cyclists who are traveling north—the direction Rory Tomasello was traveling—to dismount. This fact creates an interesting, and probably uncomfortable legal situation for the City of Morgan Hill. The city created the trail in partnership with the Santa Clara Valley Water District, the Santa Clara Valley Transportation District, CalTrans, and the Bay Area Air Quality Management District. Although the trail is located on Water District property, the trail is the product of a joint use agreement between the city and the Water District. Although the City apparently chose not to declare the crosswalk connecting two trail sections a “bicycle path,” the city neglected to inform northbound cyclists that they were required by law to dismount as they crossed the roadway. Accordingly, both the Water District and the city may face some potential liability for negligence—and in part because the trail is both a recreational trail and an “alternative transportation corridor,” California’s tort liability immunity laws may not protect these public entities from liability for negligence.

Now, there’s one more party in this tragedy. As I noted earlier, California law requires drivers to stop at crosswalks for pedestrians—and because Rory Tomasello was riding across the crosswalk, he did not enjoy the legal status of a pedestrian. So, does this mean that the driver can escape liability for the collision?

No. If Rory Tomasello was riding in the crosswalk in violation of the Municipal Code, the driver might be able to escape a citation for violating Section 21950 of the California Vehicle Code, which requires drivers to yield the right of way to pedestrians in a crosswalk. However, under California common law, the driver is still required to keep a proper lookout, and to exercise due care. Had the driver been meeting those duties, Rory Tomasello would still be alive today. Thus, although the driver might escape a citation through a loophole in the law, she may find it considerably more difficult to escape civil liability for her negligence in meeting her duty to Rory Tomasello.

But justice for Rory Tomasello doesn’t end there. On December 28, a warrant was issued for the driver’s arrest, and Sandra Arlia turned herself in to San Jose police. She has been charged with vehicular manslaughter without gross negligence, a misdemeanor with a maximum sentence of a year in jail. Arlia is scheduled to be arraigned on January 19.

As we’ve documented many times over the years, all too often cyclists receive no justice when they are injured or killed. Speaking to this point after reading about the failure of justice in the case of Autumn Grohowski, a prosecutor in Texas wrote:

I promise you all that the assistant DA in Autumn’s case delayed 6 weeks in filing the charges because he was trying to find a way to make the intoxicated manslaughter charge stick. If he is anything like the prosecutors here in Texas, telling Autumn’s family that it wasn’t going to work was one of the hardest things he had ever done.

It’s clear that in this case, at least, the Morgan Hill Police Department and the District Attorney’s office have done their best to achieve justice for Rory Tomasello, and for that, they deserve the gratitude of Rory Tomasello's family and friends, and of cyclists everywhere.
 

Comments (Comment Moderation is enabled. Your comment will not appear until approved.)
Let me see if I've got this straight. If I'm driving in Morgan Hill and see a 13 year old cyclist riding in the crosswalk, I need to stop. But if I see a 14 year old cyclist in the crosswalk, I don't. So, what if it's a 15 year old who only looks 13? Or a 12 year old who looks older? Do I need to ask for ID before I decide whether or not I have to yield?

A better standard be to yield to any human being in the crosswalk, regardless of age or mode of transportation. Period.

At least the local authorities allowed common sense to override a poorly written statute.
# Posted By bikinginla | 1/14/10 1:50 PM
That's exactly the problem with the Morgan Hill crosswalk law (although a driver failing to yield would still face potential civil liability)-- depending on *who* is in the crosswalk, the driver may or may not be in violation of the "failure to yield" statute.

When this story first broke, law enforcement officers were unsure if they could make a charge of "failure to yield to a pedestrian in the crosswalk" stick. Perhaps that difficulty, and the inherent injustice of watching her skate with no charges, helped focus the minds of the authorities. Or perhaps they would have realized anyway that a "failure to yield" charge is what is appropriate when you *almost* hit somebody, while manslaughter is the more appropriate charge when you fail to yield and *kill* somebody. We don't really know what went on behind the scenes, but it was welcome news that appropriate charges have been filed.
# Posted By Rick Bernardi | 1/14/10 4:07 PM
My question is this; what about the driver who did yield? Is the first driver under any legal obligation to determine if a roadway is clear (for car, pedestrian, or cyclist) before directing them across? Did the first driver wave Rory across the road?
# Posted By Lucas | 1/14/10 6:39 PM
Rory's death is due to a failure of design more than anything. Any unsignalized crosswalk where a pedestrian must cross two lanes of traffic going in the same direction has inherent flaws.

Here I think happened is that the car that stopped for Rory screened (blocked) the second driver's view of Rory and she then had no way to react and she crashed into him. I've seen this exact scenario play out too many times to count with pedestrians but fortunately without a crash.

In Germany I recently found out that they prohibit unsignalized crosswalks on all roads that are wider than two lanes (one in each direction) and where the speed limit is greater than 50kph (~30mph) for this exact reason.
# Posted By Andy B from Jersey | 1/16/10 2:03 AM
Andy, I think you have identified the real problem here-- yes, a sign was not posted, and yes, a driver passed another vehicle that was stopped at the crosswalk, but if drivers were alerted to the presence of the crosswalk, and more importantly, the presence of people when they are using the crosswalk, this tragedy would likely have been averted.

I think the lack of adequate warnings to drivers will be the city's real negligence problem.
# Posted By Rick Bernardi | 1/16/10 2:14 AM
I am Rory's brother, and after reading this article, i must say that this is the most intelligent and refreshing thing i have seen on this terrible thing that has happen, my family and I have been in a roller coster of emotions, pain, and mental stress due to this seemly insane and surreal situation. The bottom line is its not surreal, its real, it happen, and the sadder part is it will continue happen all over with situations like this. The only good that can come out of this tragedy is that changes happen to insure the safety of others, and Rory being a Organ Donor has saved lives and his writings and words will continue to inspire and promote free thinking. Myself, i can never fully be at peace, but i owe my brother with my life the chance to help people and do the best i can to do right by his honer in all the realistic ways that i can with out beating myself up.

anyways, this article is wonderful and i truly thank the author for putting it in this light my family so desperately needed to read, if only to keep the facts strait and raise questions out of logic and compassion, instead of anger and fear.

thank you, rory i love your forever man, your spirit will live on in me for the remainder of my days.
# Posted By Ryan Tomasello | 1/17/10 3:00 AM
Although I don't have the specific code in front of me, I remember from Drivers' Ed (way back when) that anytime a vehicle in the next lane is stopped at a crosswalk, it is illegal to pass. Presumably, that is because the only reason a vehicle one lane over would be stopped is to allow a pedestrian (or whoever) to cross. Wouldn't a citation on those grounds be more likely to stick?
# Posted By Eric Bruins | 1/18/10 5:22 PM
Ryan,

Thanks for writing. We've been following this case since we first read the news in early November, and were relieved when we learned that charges were finally filed.

Our deepest condolences to you and your family for your loss.
# Posted By Rick Bernardi | 1/22/10 6:01 AM
Eric, it is indeed illegal in California for a driver to pass another driver who has stopped at a crosswalk:

21951. Whenever any vehicle has stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway the driver of any other vehicle approaching from the rear shall not overtake and pass the stopped vehicle.

However, because of the legal confusion created by Morgan Hill's ordinance prohibiting cyclists from riding in the crosswalk, it is unclear whether a driver would be in violation of this statute if the person in the crosswalk is riding a bike, rather than walking.
# Posted By Rick Bernardi | 1/24/10 7:52 PM
I am Rory's mom. We had one of many pre-trials today. It was continued till August. It seems as their lawyer is pushing to have the case dismissed. When I first saw Ms. Arlia outside the courtroom today she and her lawyer were laughing and smiling. my heart broke to see them take my sons death so lightly. It made more determined to do all I can to bring Ms. Arlia to justice.

On positive note Connie Smith the DA and her office have been helpful and available to us anytime. They are doing a wonderful job.

Kathee Tomasello
# Posted By Kathee Tomasello | 6/10/10 7:47 PM
Kathee, thanks for keeping us posted on developments in this case. We are heartened that the D.A.'s office is pursuing justice, particularly when it appeared at first that the driver might escape charges.

Bob Mionske would be interested in talking with you about the case and how it's proceeding; if you would like to talk with Bob, you can call him toll-free at 866-835-6529, or email him at mionskelaw@hotmail.com.
# Posted By Rick Bernardi | 6/30/10 5:28 PM
I am Kathee Tomasello's sister and Rory's aunt. They are still delaying this case because the defendents lawyer is trying to produce evidence that will put the blame of this accident on the victim. I honestly do not understand why any decent human being would not just save the family further pain and suffering by not pleading guilty and perform community service for this incident. We, Kathee's family, are sad to report that Kathee Tomasello, the mother of Rory suffered a massive stroke on December 10th and she is unable to walk or talk and is struggling on a daily basis to return her voice and her ability to walk again. Her entire right side of her body was affected and was hospitalized for several weeks and has been home receiving much love and support from her family and her many friends. The overwhelming response from those who know and love the Tomasello family is astounding. We honestly feel that a woman in good health and only 56 years old had a stroke because she was dealing with the stress of losing her youngest son and having to deal with the unfeeling and despicable behavior of the person who killed her son (along with her lawyer). What type of society do we have that people do not take responsibility for their actions. I sincerely believe that my sister would not have suffered a stroke if the defendant in this case (cannot bring myself to utter her name) had not put my sister and her family through delay after delay after delay. It is my belief that the other victim in this tragedy is my sister and it will take years and years to get her any where near to the good health she was in prior to this stroke. I hope the defendant and her lawyer can sleep at night knowing how they affected my family in this way. It breaks my heart to see my sister just break out in tears when she comes across an article of clothing that belonged to her son or see a photograph of him. I hope this woman never feels the pain that is so deep in our hearts.
# Posted By Roma Martwick | 1/25/11 2:22 AM
The sad part about this trial coming up is naturally someone died. Furthermore, will Sandra Arlia ever
spend a day in jail as she is 66 years old? It's a small town where we live down in the South Valley,
I can tell you that she is not a very nice woman and I most certainly hope and pray she serves some
time!!
# Posted By Anonymous | 2/13/11 5:09 PM
Shame. I know Ms. Arlia and I know that her life is also forever altered. A mother of 3 children herself, a grandmother to 6, I know she goes to bed every night and wakes up every morning with the knowledge that she was involved in this tragedy. She is suffering as well. It hurts me as a mother to even imagine losing a child as Mrs. Tomasello did. It pains me to even imagine how to continue living after accidentally cutting short the life of someone else's child. What I will not do is write slanderous remarks based on he said / she said heresay. What I am going to say is that this was a tragic accident and could have been prevented if ANY NUMBER OF THINGS were different, but it is in the past and that is something we cannot change. I believe it would be most beneficial to everyone to do something constructive - make a difference so that this tragedy does not repeat itself. My prayers go out to Mrs. Tomasello and her family and Ms. Arlia as well but at the end of the day this was very simply... a tragic accident.
# Posted By Tamara Avilla | 10/27/11 4:10 AM