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Road Rights- Blaming the Victims, Again

By Bob Mionske

When dangerous driving threatens the lives of children, what should the authorities do? Too often, they appear to believe the proper response is cracking down on parents, rather than the dangerous drivers who threaten the lives of their children.

This was demonstrated recently when a 10-year-old girl who was riding her bike to school in Elizabethton, Tennessee was stopped by a police officer. Her offense? She was riding her bike on the road. In the officer’s judgment, it was unsafe for her to be there. The officer brought the child home, and informed her mother of his opinion.

It didn’t end there. The officer said the child should not have been allowed to ride her bike unsupervised. And then, the officer reported Teresa Tryon, the child’s mother, to Child Protective Services. She is currently being investigated on a charge of child neglect, and has been informed by the police department that, according to the District Attorney’s office, if she allows her daughter to ride her bike to school before the officer speaks with Child Protective Services, she will be “breaking the law, and treated accordingly.”

Given this law enforcement response to a child riding her bike to school, it would be understandable if one were to assume that the road in question is too dangerous for a child to ride on. And in fact, the police report makes this allegation.

And yet, the road does not appear to be a particularly busy road, and according to Tryon, the road has a “generous shoulder.” This raises the question: Is the road in question an unsafe route to school, as the officer alleges? Or is it just that allowing a child to ride her bike to school—on any road—is considered unsafe?

According to the officer, “several close calls were observed.” This raises another question: If the child was riding lawfully—the officer acknowledged that she hadn’t broken any laws—then whose behavior was leading to the “several close calls?”

It’s not to hard to figure out what happened here. Motorists were observed driving carelessly, perhaps because they were just not paying attention. And instead of enforcing the traffic laws, the officer chose to enforce his opinion of what the law should be, by removing the child and her bike from the road. Instead of talking with the drivers about their driving habits, law enforcement chose to investigate the child’s mother.

This is not the first time a child was told that riding a bike to school is unsafe.

And sadly, it was not the first time that a mother faced similar charges regarding her child. In April of 2010, Raquel Nelson, an Atlanta mother who does not own a car, had taken her three young children shopping. The trip, by bus, involved a transfer between buses. On the return trip, the family missed their transfer, and waited an hour and a half for the next bus. The family finally arrived at their stop, directly across a five-lane highway from the Nelson’s apartment. The nearest crosswalk was half a mile away. The children were tired, and hungry, and using the crosswalk would have meant walking an additional mile out of their way, so Nelson did what anybody in her position might have done—she crossed the road from the bus stop to her apartment.

The family crossed safely to the median, but while they were waiting for an opening in traffic, her four-year old son squirmed free from her grip, and ran across the road towards home. He never made it. A driver hit and killed the child, and then sped off. The driver, who had “had ‘three or four’ beers and two painkillers,” was apprehended and convicted of hit and run.

But the District Attorney also went after Nelson, prosecuting her, and getting a conviction, on a charge of vehicular homicide. The decision to prosecute Nelson, and her subsequent conviction, elicited outrage, and perhaps owing to public sentiment, perhaps owing to compassion, the Judge sentenced Nelson to one year of probation and 40 hours of community service. The driver who killed her child and left the scene served six months in jail, and will be on probation for five years.

While Nelson was treated more leniently than the driver, consider this: Suppose that instead of fleeing the scene, the driver had merely been doing something most drivers do, and forgive, like talking on the phone. Or suppose the driver “just didn’t see” the child until it was too late. Would the driver have been prosecuted at all? Unless the driver was DUI (which is a possibility in this case) there would probably be no conviction. The blame for this traffic death would then have fallen solely on the victims.

Too often, that is the default position for how unsafe driving is treated in this country. We bend over backwards to absolve the drivers of any blame, and to shift the blame onto their victims.

“The cyclist was riding too fast,” we rationalize, as if that explains why the driver made an illegal turn.

“The pedestrian should have used a crosswalk,” we say, as if that explains why the driver didn’t stop.

“The driver didn’t know it was against the law,” we offer, as if that explains why the driver buzzed so close that he hit the cyclist.

And that blame-the-victim attitude is exactly how we end up with a mother being investigated for child neglect after a police officer observed “several close calls” between careless drivers and a child lawfully-riding her bike to school.

It doesn’t have to be this way. There’s no crosswalk from a bus stop to the apartment complex? Crosswalks can be installed to help pedestrians safely cross the street. The only route to school is unsafe? Make it safe.

Designate the road as a Safe Route to School. Post signs alerting drivers to the presence of school children on the road. Establish a law enforcement presence to encourage driver awareness. Encourage families to ride to school together in bike trains. If the road is made safer, everybody wins.

And if anything positive has resulted from the police officer’s decision to remove a child and her bicycle from the road, it is this: Teresa Tryon intends to get a Safe Routes To School program established at her daughter’s school.

Research and drafting by Rick Bernardi, J.D.

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This article, Blaming The Victims, Again, was originally published on Bicycling on October 4, 2011.

Now read the fine print:
Bicycle and the Law, Bob MionskeBob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).
Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.
 
If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.
Important notice:
The information provided in the "Road Rights" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

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