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Road Rights – Traffic Injustice

By November 18, 2009October 24th, 2022No Comments

This is the First of a Two Part Story

By Bob Mionske

Susanne Kibler-Hacker, 42, a highly-experienced cyclist, is the coordinator for New Hampshire’s ride-to-work days at her office. The morning of October 15, 2009, she was riding her bike to work. She never arrived. She was wearing a reflective fluorescent vest, but a driver still hit her from behind. Kibler-Hacker, who survived the collision, was listed in serious condition at Dartmouth-Hitchcock Medical Center. Although New Hampshire has the best safe passing law in the nation, the driver was not cited for violating that law, or any other. Instead, police issued the driver a warning to exercise due care.

Gregory and Alexandra Bruehler were no strangers to adversity. On August 25, 2007, they had been driving in San Antonio with their daughter, Kylie and Gregory’s mother when they were hit head-on by a driver who lost control of her truck. Gregory, “Alex,” and Kylie were airlifted to a hospital; his mother did not survive the collision. The police report identified the other driver as erratic. The Bruehler’s fought back against their injuries, through two grueling years of rehabilitation. On October, 1, 2009, their struggle through recovery ended, when another driver lost control of his truck, hitting them from behind while they were riding their tandem outside Helotes, Texas. Alex was killed instantly; Gregory was airlifted to a hospital, where he died an hour later. Their daughter Kylie, age seven, was not riding with them this time, and was orphaned. The heart-wrenching photo of Kylie at the funeral service told the story more eloquently than any words could convey.

Jerome Featherman, 84, had been a cyclist for 10 years. He rode regularly, always taking care to wear his reflective vest and helmet, and only riding where there was a bicycle lane. Despite Featherman’s care in taking these precautions, it was not enough. On September 3, 2009, a driver who did not meet his own duty of care entered the bicycle lane, striking Featherman from behind. Featherman, one month shy of his 85th birthday, was killed. The driver, who police determined was not impaired, was fined a total of $254 for the collision that ended Featherman’s life.

Dr. Ed Farrar is well-known and widely-loved in the Wenatchee Valley, Washington. He helped found the Wenatchee Valley Velo cycling club, but these days, he is also known as the father of Team Garmin-Slipstream sprinting phenomenon Tyler Farrar. An orthopedic surgeon specializing in spinal injuries, Dr. Farrar freely gave of himself to help others. On October 22, 2008, he was on his daily morning ride before work. As he was riding an uphill road in Wenatchee, a security guard driving downhill dropped the clipboard he had apparently been reading onto the floor of his vehicle, and as he reached to retrieve it, veered across the road, hitting Dr. Farrar head on. Dr. Farrar survived, but sustained a serious spinal injury; Dr. Farrar, who helped so many others with spinal cord injuries, is now a paraplegic. The driver who put Dr. Farrar in a wheelchair was fined $250 for negligent driving in the second degree.

David Dillon was a Lieutenant with the Douglas County Sheriff’s Office in Lawrence, Kansas, and an avid cyclist. The morning of June 28, 2008, Dillon was riding just outside of Eudora when a driver hit Dillon from behind; Dillon, 44, was killed. The driver, who had been simultaneously distracted by his radio and his cell phone, was charged with unsafe passing, following too closely, and failure to wear a seat belt.

It was the noon hour on June 9, 2007. Tim O’Donnell was riding with four other riders from his club, Portland Velo, outside of Portland, Oregon. As the cyclists approached the junction with a road on their left, O’Donnell prepared to turn left. At that moment, a driver who had been following the cyclists accelerated to pass. She hit O’Donnell as he was beginning to turn. O’Donnell, 66, was killed. The driver was fined a total of $1,115 for driving on a suspended license, careless driving, and passing in a no passing zone.

Each of these cyclists, and untold thousands more, had something in common—something besides the bond of their common love of cycling. In each instance, the cyclist was seriously injured or killed by a negligent driver, and in each instance, our system of justice let them down. The negligent drivers who ran them down were charged with minor violations of the law, let off with a warning, or even not charged at all.

“It appeared to be an accident.”

That’s what the Bexar County Sheriff’s Office called the collision that took the lives of Gregory and Alexandra Bruehler. But unwittingly, he was speaking on behalf of the entire indifferent system, in response to each of these collisions, when he excused the driver who killed them with the magic word “accident.” The message, repeated hundreds of times in hundreds of different cases, was clear—if you intentionally harm somebody, we might prosecute you, but if you just happen to be very careless with lethal machinery, and lives are lost, well, who could blame you? It’s just an accident.

And that attitude is emblematic of a widespread misunderstanding of the word “accident.” Many people use the word to mean an event for which nobody is at fault. For example, when cyclist Lloyd Clarke was killed by a negligent driver who violated the law by turning left against Clarke’s right of way, Captain Steve Kelly of the Washoe County Sheriff’s Department said, “It was an unfortunate accident in which no one should be blamed.”

It’s no wonder, then, that many cyclists object to the use of the word “accident” in describing collisions, because they too believe that “accident” means nobody was at fault. So one thing that needs to be cleared up is this mistaken notion. The word “accident” does not mean that nobody was at fault. Except for the occasional Act of God, most “accidents” are the result of at least one person’s negligence; somebody is almost always at fault. “Accident” is actually used as a means to distinguish between collisions that are unintentional (in other words, collisions that are “accidental”) and collisions that are intentional—what we call assault with a deadly weapon, or attempted homicide or even homicide. Nobody—especially nobody in law enforcement or the justice system—should be confusing the unintentional nature of accidental collisions with an absence of fault.

And once we understand that somebody is always at fault in the vast majority of accidents, we can start to question why negligent drivers who injure and kill are rarely, if ever, charged with an offense reflecting the severity of the harm they have caused.

In each of the cases discussed above, and thousands of others just like them, cyclists who were injured or killed by negligent drivers were denied justice. In each case, the reason was different. Sometimes the police themselves decided “it was just an accident,” and either failed to press charges that were available, or refused to press any charges at all. And sometimes, the state was to blame, for failing to enact appropriate laws.

Take the Oregon legislature, for example. There is no vehicular homicide law in Oregon, so when a motorist driving on a suspended license violated the law and killed Tim O’Donnell, there were no appropriate laws available to charge the driver with. And although apologists for negligent drivers are fond of saying “it was just an accident,” it’s no accident that Oregon has no vehicular homicide law. For 30 years—from 1941 until 1971—there was a vehicular homicide law on the books in Oregon. In 1971, the legislature made extensive revisions to the vehicle code, and in the process, eliminated the crime of vehicular homicide. Okay, well, that was the choice the legislature made nearly 30 years ago, but things are different now, right? Wrong. This year, Portland bicycle attorney Ray Thomas worked with Tim O’Donnell’s widow and the Bicycle Transportation Alliance to get a vehicular homicide bill introduced in the legislature. It died in committee. To this day, Oregon’s legislators think “it’s just an unfortunate accident in which no one should be blamed” when a negligent driver violates the law and kills another human being.

And this is true of the legislatures in most states. In June of 2007, a drunk driver blew through a flashing, closing railroad crossing, killing a 19-year-old woman named Autumn Grohowski, who was riding her bike home on a summer evening. The District Attorney in that case declined to bring vehicular homicide charges against the driver, because the driver was not solely at fault in the crash—Autumn had started her turn onto a bike path prematurely, in order to evade two young men who had been following her. As she was preparing to turn, she was hit and mortally injured by the drunk driver—and under Pennsylvania law, because the District Attorney could not prove that the drunk driver was solely at fault, he could not prosecute the driver for vehicular homicide. In response toAutumn’s story, I received a heartfelt letter from a prosecutor in Texas, which speaks to the problem facing many prosecutors:

As an assistant DA and a cyclist, it is with a heavy heart that I read your article and an equally heavy heart that I must author this comment. The facts of this case are as tragic as they come from beginning to end. I could tell from the beginning where it was going and what the reactions of your readers would be. Unfortunately, the blame for the lack of justice in this case is not falling on the shoulders of those who are to blame.
I promise you all that the assistant DA in Autumn’s case delayed 6 weeks in filing the charges because he was trying to find a way to make the intoxicated manslaughter charge stick. If he is anything like the prosecutors here in Texas, telling Autumn’s family that it wasn’t going to work was one of the hardest things he had ever done … So where should the blame fall?

… First, the legislatures. They have made these cases so hard to prove. We have had a similar case pending here, where the victim was a cyclist from our office, that has been on going for over four years. It has gone through appeal after appeal and gone to jury trial twice. The defendant was finally convicted of the slightly lesser charge of failure to stop and render aid. The fact is, it is almost impossible to prove that intoxication was the cause when there are so many other factors when it comes to vehicular offenses and so many similar incidents where alcohol is not even involved.

In most states, the bar has been set so high for prosecutions that anything short of intentionally hitting somebody, driving recklessly, or driving impaired will be shrugged off as an “accident,” worth at most a ticket for a minor violation. And this means that the bar has also been set very, very low for driver competence. The result is there are few, if any, legal consequences for injuring or killing somebody due to negligent driving, even when the injury or death is the result of the negligent driver’s violation of a traffic law.

This near-total failure to hold drivers accountable for their negligence may be due to a common belief that those injured or killed by negligent drivers will find justice in the civil courts. Unfortunately, far too often, the victims of negligence find no justice there either. There are several reasons for this. First, the minimum liability insurance requirements are set so low by the state legislatures that many drivers are “underinsured” for anything more than a minor collision. This means that even if the driver’s insurance company compensates you up to the policy limits, these limits would usually may be inadequate to cover the damages for your injuries in most car-on-bike crashes.

But what about the often-discussed “take the driver’s home and everything he’s got” approach to justice? Have you ever heard the saying, “you can’t get blood from a turnip”? The fact is, most people don’t have significant assets—if they “own” a home, it is in reality the mortgage company’s asset, in which the “homeowner” has some equity. For most people, the next largest asset is their car, which is often owned by the bank. And the returns keep diminishing from there. And even if you wanted to pursue those diminishing returns, the bankruptcy laws will protect at least some of the negligent driver’s assets. And all of that assumes that the driver has insurance, and assets, to begin with. It also assumes that there’s some amount of money that CAN compensate you and your survivors for your loss. Finally, it assumes that you yourself were in no way negligent—an issue the insurance companies are expert at exploiting. The bottom line is that shifting all legal consequences to the civil justice system is just another form of justice denied.

The result of this lack of accountability is that there is no real legal deterrence for negligent driving, and no real justice for the victims of negligent drivers. This lack of legal support for cyclists (and pedestrians) leaves them legally vulnerable on the road, just as they are physically vulnerable on the road. And this legal vulnerability that we place on cyclists undermines all other efforts to promote cycling—a fact the Dutch readily grasped when they established a law that assigns a rebuttable presumption of liability to the driver in any car-on-bike collision.

Comparing cyclist safety in the Netherlands and here, it is clear which society continues to enable negligent drivers who injure and kill. On June 19, 2009, Texas Governor Rick Perry vetoed a law that would have required drivers to pass cyclists with a minimum three-foot safe passing distance. Commenting on his veto, Governor Perry said:

“While I am in favor of measures that make our roads safer for everyone, this bill contradicts much of the current statute and places the liability and responsibility on the operator of a motor vehicle when encountering one of these vulnerable road users. In addition, an operator of a motor vehicle is already subject to penalties when he or she is at fault for causing a collision or operating recklessly, whether it is against a ‘vulnerable user’ or not.”

Two months later, as the parents of seven-year-old Kylie Bruehler lay dead on a Texas road, Bexar County Sheriff’s investigators concluded that they would not likely file charges against the driver who ran them down, because it did not appear that he had broken any laws.

It was just an accident.

(Research and drafting provided by Rick Bernardi, J.D.) 

This article, Traffic Injustice, was originally published on Bicycling on November 18, 2009.

Now read the fine print:
Bob 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 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
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.