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Road Rights- Small Steps

By Bob Mionske

Too often the cycling news that captures our attention is about tragedy or injustice—or both. But as we continue to stand up for our right to the road, it’s also important to recognize signs of progress, no matter how small they may be. I was reminded of that by two events that took place recently in Mississippi and Pennsylvania.

Remember Jan Morgan, the Starkville, Mississippi, cyclist who was run down by a driver while on a training ride last May? That collision marked the beginning of a long, hard battle for justice in a system that seemed, at best, indifferent to what had happened. And when Jan finally had her day in court last November, the judge turned the tables on her, shifting the blame from the negligent driver to Jan: “Mrs. Morgan, you should not have been riding your bike on the road,” he said.

The driver, Robbie Norton, went on to appeal her $50 fine for negligent driving. On April 2, after a new trial, she was given the opportunity to make a statement to the court. David Morgan, Jan’s husband, believes that Judge Jim Kitchens was giving Norton an opportunity to apologize to Jan. Instead, she began to defend herself. David explains what happened next:

“The judge shut [Norton] down promptly and told her she was digging a deeper hole for herself. He asked Jan what kind of sentence she would like to give her, and even said if she had asked to put her in jail he would have. Jan asked not for jail, but in the spirit of bicycle advocacy, asked for her to do a PSA. The judge liked this and added that to her sentence.”

Norton was found guilty of a more serious charge, simple assault with a deadly weapon. And instead of paying the $50 fine she originally objected to, she received a $250 fine, plus court costs. She also received a six-month suspended sentence, and was ordered to produce a public service announcement about safe driving.

Many cyclists would say that Norton still got off easy. A $250 fine doesn’t reflect the harm she caused, and because Norton is uninsured, this sentence is all the justice Jan Morgan is likely to receive. But Morgan wasn’t looking for retribution; she was looking for some accountability. And because of her perseverance, the message originally sent to drivers at the original trial in November—that cyclists are to blame for their injuries when drivers run them down—is not the one that drivers will hear when her public service announcement is aired. Is this perfect justice? No, but it’s a step in the right direction.

That good news was followed by another remarkable story. Last December, Patrick Ytsma, a well-known ambassador for our right to the road, was run down on the Fahy Bridge in Bethlehem, Pennsylvania. Although he was “lit like a Christmas tree,” according to police, the driver says she never saw him. The driver was charged with careless driving-unintentional death, which carries a penalty of just $500.

And then, almost unbelievably, it happened again. On April 2, Frank Pavlik, another well-known cycling-safety advocate, was struck by a driver on Fahy Bridge. After striking Pavlik, the driver swerved into the adjacent lane and accelerated away from the scene, changing the collision into a hit and run.

However, this time things were different. Richard Gubish Jr., a local bus driver, saw the collision in his mirrors, and quickly blocked the fleeing driver’s escape across the bridge. The driver then threw his car into reverse, hoping to escape in the opposite direction. But high school student Jud Smull, who was driving over the bridge on his way to a track meet, saw what was happening, and blocked the driver’s escape from the rear. Police arrived, and placed the driver under arrest. Gubish and Smull were later honored as heroes by Bethlehem Police Commissioner Jason Schiffer, himself an avid cyclist.

Miraculously, Pavlik survived the collision with no serious injuries. And because the crash occurred 15 hours after Pennsylvania’s new four-foot safe-passing law took effect, the driver, a 17-year-old who remains unidentified because of his age, became the first Pennsylvania driver to be cited for violating the law (he was also charged with a misdemeanor hit-and-run violation).

Critics of the safe passing laws often complain that the laws are not enforced. This is too-often true. Even when the evidence is overwhelming, law enforcement may bend over backwards to exonerate the driver. When that happens, the law is rendered useless by police inaction.

Critics also observe that drivers continue to make unsafe passes and officers are not writing tickets to those drivers. Of course, police cannot write tickets for a violation they did not see. However, this Pennsylvania case shows another, less-understood side of how safe-passing laws are supposed to work: When a driver buzzes and hits a cyclist, the safe-passing law prevents the driver from arguing in court that the buzz was a safe and legal pass.

Holding an unsafe driver accountable in the courtroom may not be as exciting as having police out patrolling for drivers who buzz, but it still helps bring dangerous drivers to justice, and it gets the word out to other drivers about what they must do to pass a cyclist safely. And that is a very good start in making the roads safer for all of us.

Research and assistance by Rick Bernardi, J.D.

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This article, Small Steps, was originally published on Bicycling on April 13, 2012.

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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