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Road Rights- Finding Middle Ground in Maryland

By Bob Mionske

Nathan Krasnopoler was on his way home from the Farmer’s Market. At least that’s what his family is thinking, because the fresh produce he was carrying was scattered along the roadway when Jeannette Walke, 83, right-hooked him on February 26. Krasnopoler, a 20 year old engineering student at Johns Hopkins University, was pinned under Walke’s car and severely injured. He went into cardiac arrest on the way to the hospital, and has remained in a coma since the day of the collision. On April 9, Krasnopoler’s family announced that doctors do not expect him to recover.

Walke was charged with negligent driving and failure to yield. This was a mixed victory for cycling advocates. For six weeks, it appeared that she might not be charged at all, despite clear evidence of several violations of the law.

It wouldn’t have been the first time that a driver escaped charges in Maryland. In 2009, Jack Yates was killed under the rear wheels of the truck that right-hooked him. No charges were filed. In 2010, Natasha Pettigrew was run down by a driver who continued driving home, and later reported that she thought she had hit a dog, or a deer. No charges filed.

So when charges were filed against the driver who hit Nathan Krasnopoler, it was a small victory for justice—but what a small victory.

Failure to yield? That’s the best we can come up with to describe what happened? Failure to yield is what happens when a driver nearly causes a collision. It’s what happens in a minor fender bender. It does not describe what happened to Nathan Krasnopoler, and neither does that negligent driving charge.

Nobody is interested in sending an octogenarian to jail, but is a minor fine an appropriate response to a life-altering—or life-ending—injury? Shouldn’t there be a middle ground? That’s the problem in Maryland—there’s not a lot of middle ground between a minor traffic violation and more serious charges.

And when the charges are minor, the consequences can be, well, inconsequential. Consider what happened, for example, when eight year old David Greeley was run down by Meghann Weaver. Greeley suffered a fractured skull and a leg injury that resulted in amputation below the knee. Weaver was charged with negligent driving; her fine was $140.

It’s infuriating, because the penalty does not reflect the harm done. The message sent to Maryland drivers is that seriously injuring somebody, or even taking a life, is virtually consequence-free.

Maryland cycling advocates thought the state should be sending drivers a different message, so they began lobbying for passage of legislation that would create some middle ground between “failure to yield” and killing somebody while under the influence.

And then they discovered why drivers have no accountability: Because the legislature wants it that way. The proposed bill passed the House, but hit a roadblock in the Senate. As State Senator Brian Frosh explained:


“I’m not sure we have room in our jails for people who have killed somebody totally accidentally while they’re changing a radio station. That’s negligence.”


Seriously, Senator? Playing with the radio is so much more important than human life that we can’t come up with some kind of appropriate penalty when somebody dies?

Yes, taking a life while playing with the radio is negligence. But there are a couple of things that need to be said about that. First, in Maryland the driver’s insurance company can get completely off the hook if it can convince the jury that the injured person contributed in any way to his own injuries.

Often, a jury may try to be fair-minded to the driver and assign some minor, arbitrary amount of fault to the injured person. In Maryland, that means the insurance company wins, and the injured person loses—even if the jury decides that the negligent driver was 99% responsible for the injuries, and the injured person was only 1% responsible. And the jury isn’t allowed to know this.

Second, the law proposed penalties for a death resulting from criminal negligence, not simple negligence. A driver’s behavior would have to be more extreme than the momentary lapses that all motorists might experience, but would not have to be so extreme that the driver knew that there would be a substantial risk of death. In other words, the bill would begin to fill in some of that vast middle ground between “failure to yield” and killing somebody while under the influence.

That isn’t a radical proposal. At one time, vehicle code violations were criminal offenses. Killing somebody might be both against the law, and negligent. Beginning in the 1970s that changed as most states decriminalized their vehicle codes in an effort to unclog their criminal courts. But the legislatures threw the baby out with the bathwater, treating serious incidents, like killing somebody, just like minor incidents—for example, failure to yield.

One reason for this inability to distinguish between serious and minor violations is that the law reflects an unconscious assumption among legislators that the roads are for cars, and thus, that minor violations will only result in fender benders. To kill somebody in another car, it usually takes more extreme behavior, and that extreme behavior is punished under existing law.

So holding drivers accountable for criminal negligence wasn’t a radical idea—but it was too radical an idea for the State Senate. To get it past the brick wall of the Judiciary Committee, proponents suggested a compromise. There would be no middle ground between simple negligence and extreme negligence. Drivers would only be held accountable for deaths resulting from extreme negligence.

And the law passed.

Now, there’s some new middle ground in Maryland between failure to yield and felony manslaughter. If you kill somebody and your driving behavior was extreme enough, you can be charged with misdemeanor manslaughter, even though you are not DUI. But if you just violate a traffic law and carelessly take a life, that is still virtually consequence-free. There’s still a lot of middle ground missing from the law.

For too long, too many legislatures have sent the message to motorists that carelessly injuring and killing cyclists is not a big deal. But losing a leg—or your life—is a big deal, and we need to keep saying it until legislators start getting the message.

Research and assistance by Rick Bernardi, J.D.

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This article, Finding Middle Ground in Maryland, was originally published on Bicycling on April 22, 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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