“I didn’t see the cyclist.”
It’s the most common explanation motorists offer after hitting a rider.
Even though the cyclist was wearing high-visibility clothing.
Or was well-lit.
Or was riding in broad daylight.
It’s the “ignorance is bliss” defense: “I didn’t see the cyclist, and I didn’t intend to hit anybody. It was just an accident. It’s nobody’s fault.”
Well, yes, it is somebody’s fault. It’s your fault, it doesn’t matter that you didn’t “intend” to hit somebody. You did hit somebody, and if you didn’t see the cyclist because you weren’t paying attention, it’s your fault.
Let’s be clear about this point, because it’s the other Get Out of Jail Free card that negligent drivers always seem to reach for. Intent is not relevant in determining whether a driver was at fault in an accident. In fact, that’s why we call unintentional collisions “accidents.” If the driver intended to hit somebody, that’s assault. If the driver didn’t intend to hit somebody, that’s an “accident.” But just because the collision was unintentional doesn’t mean that nobody was to blame. Almost all collisions are preventable. If the collision occurred because a motorist didn’t see a cyclist who was plainly visible, guess what? It’s the motorist’s fault.
I’m reminded of these excuses by two recent cases involving drivers who “didn’t see” the cyclists they hit. Sommit Luangpakham is an Ottawa motorist who was recently found guilty on 10 charges of dangerous driving causing bodily harm. The charges stemmed from a horrific collision that occurred on a summer morning in 2009. Five cyclists set out on a morning ride from Kanata, Ontario to Pakenham and back. Three miles into their ride, Luangpakham drifted into the bicycle lane. He hit one of the cyclists. And then another. And another. And another. And another. He hit all five cyclists, and continued driving.
Luangpakham’s excuse? He thought he had hit a pole. Even though he’d driven 240 feet through a line of brightly clad cyclists riding in broad daylight. Even though one of the cyclists had smashed into the driver’s side of his windshield directly in front of his face, leaving blood splattered on the caved-in windshield. Luangpakham, his attorney explained, had only had a “momentary” lapse of attention. In other words, he “didn’t see them”—the negligent driver’s universal Get Out of Jail Free card.
Let’s accept Luangpakham’s claim at face value: He didn’t see them. That means he wasn’t keeping a proper lookout while driving, even though the law requires him to do so. The fact is, “I didn’t see them” isn’t a defense: It’s an admission of guilt. Whether Luangpakham merely had a “momentary” lapse of attention—that continued for 240 feet as cyclist after cyclist smashed into his vehicle—or whether he had been drinking, as police believed, Luangpakham admitted that he didn’t see a line of people who were plainly visible to any driver observing his duty to keep a proper lookout. It was an accident, but accidents can also be crimes, and the jury decided that Luangpakham’s driving behavior was criminal.
So here’s a suggestion for police, prosecutors, and personal-injury attorneys everywhere. The next time a driver tells you “I didn’t see” the cyclist, ask yourself one question: Would a driver who is observing the duty to keep a proper lookout have seen the rider? Unless there is some extenuating circumstance to explain the driver’s behavior (it was nighttime and the cyclist was riding without lights), then treat that statement as what it is—an admission of guilt.
When drivers start realizing that inattention is not a valid excuse for injuring or killing another human being, they might start paying more attention. At the least, they will start facing appropriate charges.
And that brings me to the approach that police took in the case of Michael Gustman, a Seymour, Wisconsin driver who hit a pair of cyclists riding a tandem, in a rear-end collision that took the life of one of the cyclists.
“You’re supposed to be able to see what’s on the road in front of you and you should only proceed when it’s safe to do so,” Outagamie County Sheriff’s Capt. Mike Jobe said. “When you run into another vehicle or in this case, a bicycle you should have seen, then obviously it’s our view that the only reason you didn’t see it was because you weren’t paying attention.”
That’s exactly right, although I would argue that there is a world of difference between “inattentive driving”—the violation Gustman was cited for—and inattentive driving resulting in a death. So why wasn’t he charged with a more serious offense? Wisconsin law requires evidence of reckless driving to support a conviction of homicide by negligent operation of a vehicle. It’s one more example of the enormous donut hole in the law between minor and serious traffic offenses. In the interest of justice, that gap in the law needs to be filled, but that is a job for the state legislatures. The Outagamie County Sheriff’s Department did the best they could with the existing law, sending a message to negligent drivers that “I didn’t see them” is not going to be a Get Out of Jail Free card in Outagamie County. They got it right. Now it’s time for police, prosecutors, and legislatures everywhere to start getting it right, too.
Research and assistance by Rick Bernardi, J.D.
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