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Road Rights- Hit and Run

By Bob Mionske

Like many New Yorkers, Bobby Bowen had re-discovered the joy of cycling in the city. As Bobby had explained, riding everywhere "made him feel happy and helped him stay fit and feel alive." It’s a feeling we all know. The simple act of traveling somewhere is transformed by the bicycle into a moving celebration of life.

For Bowen, that celebration came crashing to a sudden and tragic end on August 26. Sometime around 11 p.m., as he was riding to a friend’s house, a truck hauling a flatbed trailer struck Bowen, injuring him so badly that doctors couldn’t even perform surgery. Still, Bowen hung on, clinging to life throughout the weekend. Despite his valiant struggle to live, his fight ended just before midnight on August 30.

An accomplished jazz bassist and music professor at Hofstra University, Bowen left behind a devastated family, and stunned friends, students and colleagues.

The driver never even stopped, and although there were cameras at the scene of the crash, there was nothing conclusive in the footage that would allow the police to identify the truck.

I wish I could say that a driver hitting another human being and leaving the scene is an aberration. I wish I could say that drivers are careful and conscientious, and that when there’s an accident and somebody is injured, they always stop and render assistance. I wish I could say those things, but I can’t, because they’re not true. When apologists for negligent drivers assure us that we don’t need penalties for vehicular homicide, because the remorse that drivers feel is punishment enough, I wonder what planet these apologists live on. Certainly not this one, where drivers can apparently hit, injure and perhaps even kill another human being, and keep on driving, as if they had just driven over nothing more consequential than a stick in the road. If you think that’s too harsh an indictment, consider just two of the many incidents of hit and run we have seen in the news:

  • On August 30, 2009, a vehicle reported to be a white pickup truck traveling at a high speed hit and killed 54-year-old Des Moines, Iowa cyclist Mark Grgurich. The driver did not stop to render aid to the stricken cyclist; instead, the driver sped off, leaving Grgurich dead—or dying—in the road. It’s indisputable that the driver knew that he had hit and killed a cyclist. We know this because the driver subsequently attempted to conceal the damage to his vehicle. Despite those efforts, Paul “Jud” McKinney was charged on September 14 with leaving the scene of a fatal accident (a felony), obstruction of prosecution by destruction of evidence (an aggravated misdemeanor) and failure to maintain control of a vehicle (a simple misdemeanor). Ironically, if he had simply stopped as required, he would have faced at most a relatively minor charge (assuming that he would have been charged at all), with at most a minor penalty, even though he killed someone. By fleeing the scene, and subsequently destroying evidence, McKinney had transformed a relatively minor charge into a far more serious set of charges. However, although McKinney was charged in Grgurich’s death, he was never brought to justice; on October 30, McKinney was found dead at home, an apparent suicide .
  • On September 20, 2010, Natasha Pettigrew, a law student at the University of Miami, and the Green Party candidate for the US Senate seat currently held by Senator Barbara Mikulski of Maryland, was training for a triathlon on an early Sunday morning. At 5:30 a.m., she was struck and critically injured by an SUV; the driver was reported to have momentarily slowed after impact, but did not stop, reportedly driving nearly three miles with a flat tire and sparks flying from under her SUV. Pettigrew was rushed to the hospital, and while police were investigating the scene, the driver called police, reporting that she had thought she had hit a dog, or a deer, but after arriving at home, had found a bicycle lodged under her vehicle. The next day, Pettigrew succumbed to her injuries. The driver was not charged.


In most crashes, I think there is no question that the driver is absolutely aware that there has been a collision, even if the driver is unsure of exactly what has happened. We all know how berserk drivers can get when a cyclist slaps the side of their car to let the driver know that the cyclist is about to be crushed. There is simply no way that a driver can be completely unaware that there has been an impact to the vehicle when the driver hits a cyclist with enough force to kill. It might be true that the driver didn’t see the cyclist, and thus, didn’t know that it was a cyclist that had been hit, but a person on a bike is big; and a bike contains lots of hard metal that will make noise. Even if you mistakenly run over a small animal, like ground hog, or something larger, like a dog, it’s an event. Hitting a person is a far bigger, louder collision, one that can cause serious damage to the car, too.

Applying Ockham’s razor—the theory that the simplest explanation is usually the correct one—the explanation is that these drivers did feel the impact, but kept on driving. And again applying Ockham’s razor, the reason is that the driver didn’t want to face the consequences of hitting another human being.

And that’s understandable. After all, the consequences are serious, and in that split second after the sickening thud that we all know that they feel, the driver must decide what to do. Some drivers stop and render assistance. Some panic and keep driving.

And I think the reality is that all too often, hit and run drivers do know what happened, but in that split moment after impact, they panic, because they are driving drunk, or without a license, and they realize the seriousness of the consequences if they stop. After all, if the driver hasn’t done anything wrong, there’s no reason to flee, and risk the felony charges that apply. I think that what we are often witnessing is the driver making a split-second calculation, weighing the risks of facing a DUI with homicide charge, against the risks involved in fleeing the scene, and as long as the risks of stopping are greater than the risks of fleeing, some drivers will choose the lesser risk and flee.

Did the driver who hit and killed Natasha Pettigrew know the awful truth of what happened when she felt the impact? Did she see the unfolding horror of Pettigrew disappearing under her SUV too late to react and save her? Did she give in to a moment of panic, only to be confronted later with the grim reality of Pettigrew’s bike wedged firmly under her SUV?

Or did she truly believe that she had only hit a dog, or a deer, and continue driving home? All we know at this point is that after hitting Pettigrew, the driver of the SUV went home and contacted police. But even if we take what the driver had to say at face value—that she didn’t see a cyclist who was directly in front of her and equipped with lights, on a lighted road, and that she thought that her flat tire and the shower of sparks coming from under her vehicle were caused by a collision with a dog, or perhaps a deer—we should be asking some very serious questions about whether this driver exhibits the basic level of competence that should be expected of motor vehicle operators.

At least she called the police. The driver who hit and killed Bobby Bowen kept driving, and never looked back. Did he even know that he had hit someone? It’s hard to say. When cyclist Serge Venne was hit by a truck in La Tuque, Quebec, the driver continued on his way, and when he was stopped by the police several kilometers away, he appeared to be completely unaware that he had hit a cyclist. The same thing happened in Redwood City, California, when cyclist Mary Yonkers was right-hooked by a turning dump truck ; the driver continued to his destination, and was informed later by police that he had hit a cyclist. Trucks are significantly larger than automobiles, so it may be more difficult for a driver to tell when there has been a collision with a cyclist or a pedestrian. On the other hand, when a truck driver right-hooked Portland cyclist Brett Jarolimek , killing him instantly, the driver immediately stopped, so we at least know that it’s possible for truck drivers to be aware that there has been an impact with a cyclist.

Nevertheless, despite these frightening incidents, we can take comfort in the fact that serious collisions with motor vehicles are actually relatively rare, and that, as Bobby Bowen knew, cycling remains a safe way to “feel happy, stay fit, and feel alive.” Still, we would all be wise to take some simple precautions:

  • Ride safely, and within the law;
  • Ride with lights, and wear bright and reflective clothing;
  • Use a mirror (I consider my mirror to be an indispensable part of my rides), and if possible, ride with a video camera;
  • Make sure that the UM/UIM coverage on your auto insurance policy covers you for the maximum amount available.


And if you can, do something for Bobby Bowen, too. New York police are investigating his death as a hit and run homicide, but they need the public’s help. To assist police in tracking down the driver, authorities and the Bowen family are asking anyone with information regarding the ongoing investigation to contact the NYPD tips line at 1-800-577-TIPS. (You can click here for information about submitting a tip via text or the Internet).

Research and drafting provided by Rick Bernardi, j.D.

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This article, Hit and Run, was originally published on Bicycling on October 1, 2010.

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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