September 2010 DC BAC Meeting Notes

Residential/Commercial Bike Parking Requirements: The BAC agreed to support a bill to amend the 2007 Bicycle Commuter and Parking Expansion Act. That act increased the minimum parking requirements for bikes from 5% of car parking to 10% and also added a residential parking requirement. The new bill, to be introduced possibly in the fall, will give bicycle parking enforcement power to the Mayor. In the 2007 law it was unclear who had the power to enforce it. This means it hasn't been enforced. DCRA is able to enforce zoning requirements for auto parking, but not bicycles. The 2007 bill was not a zoning bill that only applied to new construction, it was retroactive on all existing buildings. The ability to enforce the commercial building element of the 2007 law (section 5) will go into effect 6 months after the law passes - to give owners time to come into compliance. The residential requirement and hardship process will take longer before enforcement begins because rules need to be written.

Legislation - A third year law school student interning with CM Cheh says she's interested in introducing some bicycle legislation. At the top of his list was a change in the negligence law from contributory to comparitive, complete street legislation, a bicycle access to buildings law and a vulnerable user law. All but the last are already being pursued by the BAC's legislative committee, so it's good to know that CM Cheh would be open to those. He also suggested an update to DC five year old Bicycle Master Plan (which was a five year plan). Idaho stop, I'm afraid to say, is considered a non-starter. The BAC also suggested a full cell phone ban, and a courier access law.

DDOT update - Bikesharing is on track to launch around September 20th with 40-50 stations. The other stations will be rolling out over afterwards. They want to have a large kickoff event with cyclists riding the ~400 bikes from the warehouse to each station, leaving bikes at the station as they go.
MBT - DOT signed a Memorandum of Understanding with Gospel Ministries to maintain the trail in DC, they would use trikes to move all the equipment they need up and down the trail.
South Capital Street Trail - The concept plan still in work
Bike lanes/cycle tracks - The 15th Street NW cycletrack is scheduled to open later this month, but it could take longer because of necessary signal changes to 13 of 15 intersections. They're also working on how to deal with turn lanes and allowing access to parking garages where drivers would need to cross the cycletrack mid-block. The cycletrack will run from Penn to the existing one at Mass and will be extended north to New Hampshire. Eventually it will go to Euclid. There will be bike-only signals for cyclists going to/from the section of Pennsylvania that runs in front of the White House and also one at 15th and W. There will probably be plastic bollards along the side, but they're looking at how to make them more permanent. The existing 15th Street cycletrack is carrying as much traffic as any other lane on 15th.

New Hampshire contraflow lane - Someone asked why, since the sensors weren't 100% effective, there was no push button installed? The reasons are that because the intersection will be rebuilt soon, they didn't want to spend too much money on this and because it's a FHWA experiment they need to work with their DOT partners.
 

bike lanes - They've installed 2.75 miles so far this year.

Facilities committee - they reveiwed L and M as future cycletrack streeets. M looks good, but the intersection with Connecticutt Ave will be difficult. L & M will be uni-directional because the signal changes needed for bidirectional would be too difficult.

Traffic study - According to a Downtown BID study, in 2004 32% of people who went downtown got there by drivng alone and 1% biked. In 2010 that had changed to 14% driving alone and 2% biking. Only 20% of people arrive by car, making the car third behind Metro Rail and Metro bus.

Comments

[Rdp]

Great news on the legislative front! Also, that bike rack looks like it would seriously impede use for a good number of bikes due to the large 'W' -- I can tell that I'd never be able to lock to that U. Are there any restrictions on DDOT custom racks to ensure that they're actually useful?

[Jim Titus]

Perhaps we need a name other than "Idaho stop". For years as a child I would hear the derogatory phrase "California stop" used to refer to anyone who should have stopped but did not. DC might have never made it the general rule but for federal legislation, but it did mark about 1/4 of it's intersections "right on red after stop".

Does DDOT have the authority to post signs that say "except bicycles" and/or "bicycles yield" below stop signs? Identifying some intersections where bikes are not required to stop would be both a test and a communication tool for the concept.

Could you refresh my memory? What are some of the circumstances where contributory negligence doctrine prevents cyclist recovery and comparative negligence would not?

[washcycle]

Jim, I have heard the Idaho stop referred to as the "safe stop", but everyone calls it Idaho stop (Oregon's proposed law even called it that) and not derogatorily. It's more like Texas toast.

I don't think DDOT can do that - with the signs - because it's not prescribed in the MUTCD (like bike signals), but I'm not sure on that.

In Washington v. A & H Garcias Trash Hauling Co, a cyclist was riding to the right of a truck that turned right and cut him off causing a collision. The cyclist lost because the jury agreed that he contributed to his accident. He contributed by not accurately predicting the drivers motions: "The bicyclist, for his own safety, was obliged to pay close attention to the movements of the truck, and to anticipate the possibility that it might turn right, toward the bicycle...
[H]e knew that a right turn was one of three possible directions the truck might take upon reaching the intersection."

[Contrarian]

You can do traffic controls that are outside of the MUTCD on an "experimental" basis, but it's a lot of work, because you have to get permission and then report your results.

Re: comparitive vs. contributory negligence. Under contributory negligence, the current standard, a plaintiff cannot collect if he contributed at all to the accident. In Washington v. Garcias the court found that basically cyclists have a duty to keep from getting hit, so every accident is at least partly the fault of the cyclist, so an injured cyclist can never collect damages in DC. (I'm exaggerating, but only a little).

Under comparative negligence, the court apportions the blame and a plaintiff can collect damages proportional to the defendant's responsibility. So if the court finds that a defendant is 90% responsible for an accident and the plaintiff is 10%, the plaintiff can recover 90% of his damages.

Note that the negligence rule has nothing to do with bicycles or even vehicles. It's a rule that favors people with money, and favors people who injure other people. However, since drivers tend to injure a lot of non-drivers, it's a rule that statistically favors drivers over non-drivers.

Note also that comparative negligence fits what most people consider "fair." I think most people would be surprised to learn that contributory negligence is the way that the law works.

Finally, a piece of legislation that would benefit cyclists who are the victims of accidents would be to legislatively overturn Washington v. Garcia.

[washcycle]

I should add that under the proposed DC law the defendant has to be at least 51% responsible (or primarily responsible) for the plaintiff to win.

[Richard Layman]

A lot of the stuff in the section on "legislation" really should be covered by a master transportation plan for the city... instead of the piecemeal approach that prevails.

[Jim Titus]

I'll ask my NUTCD friends about this. Given that they have "except buses" and "except taxicabs" it ought to be possible to make exceptions for bicycles.
Why didn't the last clear chance rule help the cyclist in the case mentioned? I agree that the instruction seems preposterous if that is what you are quoting. That instruction would give trucks open season on all vehicles. I'm assuming that the truck passed cyclist and failed to signal? Legislation to correct each absurd court ruling about a cyclist's duty seems worth doing independently of contributory negligence.

[Jim Titus]

OK I read that case, which is limited to cyclists riding in the curb lane when there are parked cars. Pretty apalling, apart from the contributory negligence aspect. It seems archaic now, with the court seemingly implying that he should have taken the lane, or at least realized that since he didn't take the lane he must yield to everybody. I think we have some similar potential vulnerabilities in the Maryland code--and possibly a new vulnerability now that we are not required to ride in the shoulder. One certainly should not pass a truck on the right on the shoulder.

[SJE]

Contrarian is right on the money regarding contributory negligence. There are advantages to the system: it reduces lawsuits and insurance costs, encourages people to be careful, and avoids some of the most ridiculous excesses of negligence rules. For example, when there is a terrible road accident and there is no one to sue, they go after the people who built the road, even if they are only 1% responsible.

On the other hand, strict contributory negligence lets off bad drivers, especially when the victim is disfavored by the jury (e.g. a cyclist in DC). As a practical result, contrib negligence favors anyone driving a bigger vehicle (or truck, tank, train, airplane, boat), over anyone smaller because the injured party cannot sue.

[SJE]

I can't help noticing the similarities between the Alice Swanson and the Washington v Garcias case.

I also wonder if Hugo Garcia, the owner of KMG Hauling is the "H Garcia" in the 1990 "A&H Garcia's Trash Hauling Co." A&H doesnt exist anymore. Did it change its name to KMG?

[SJE]

It looks like it is IS, or at least the same family.

Aurelio Garcia ran a trash hauling company, known as "Garcia's" with his son Hugo. (i.e. A&H Garcia's) Hugo started KMG in 2001 because of his father's 20 year experience (see 2003 profile of KMG). Consistent with this is that KMG touts its 30 years experience yet was only formed in 2001.

There are also recent Virginia bankruptcy cases associated with A&H Garcia's, which would explain why the company is no longer listed. It lists Hugo V. Garcia as the past president. This is different from Hugo M Garcia of KMG, but the other parallels are striking. More digging is required, but the evidence suggests the same family.

If so, its Deja Vu....You have a case from 1990 where a cyclist was injured by a truck that turned right in front of him, in the DuPont Circle area. He couldn't sue because of contributory negligence: he should have anticipated that the truck might turn into him.

28 years later, Alice Swanson is killed by a truck turning right in the DuPont Circle area. Same trash company. Contributory negligence according to the police.

Going forward:
1. The legislature must revisit the negligence standards, as the current contributory negligence does not encourage drivers to be careful, as shown by these cases.
2. Shouldn't we reopen the police report issue (my beating of the dead horse issue).
Contributory negligence prevents the courts from closely looking at the evidence. Any police report of any contributory negligence kills the case. With comparative negligence, or mixed contributory, any sloppy police work would be uncovered under cross examination. This acts as an incentive to be careful.
3. Do we really want KMG driving DC's streets?

[SJE]

Hugo V. Garcia is the brother of Aurelio Garcia (A&H Garcias). Aurelio is the father of Hugo M. Garcia, president of KMG Hauling.

[Jim Titus]

Pretty amazing that it is the same family; I'd stay away from their trucks.

I still don't understand why the last chance rule did not save the plaintiff's case in Washington v AH Garcia Trash Hauling Co. One thing to note: perhaps they settled in the Swanson case because they--if not the police--realize that the bike lane in the Swanson case is totally different from Washington who was riding in a curb lane where--the court held--bicycles do not belong.

Does anyone have a copy or link to the proposal for revising contributory negligence in DC?

I'll add to the expected effects of contributory negligence: too little care by drivers and too much care by cyclists and pedestrians. Yet while we talk about how we are seeing too little care by drivers, what is the evidence that cyclists are being too cautious?

In Maryland, I think that any prospect of reform is foreclosed unless the Chairman in the House is defeated--far less controversial matters are blocked. So naturally, we focus on ways of achieving the same result, which is mainly to clarify the rules so that a court will not ascribe an unreasonable duty to cyclists. Has the recent repeal of the requirement to ride in the shoulder possibly made cyclists traveling straigt in the shoulder legally vulnerable to the right hook?

[washcycle]

Jeff Peel probably has a copy. of the proposed legislation.

what is the evidence that cyclists are being too cautious? I don't know if they're being TOO cautious. But I think they're being more cautious. That can be seen in fewer crashes with pedestrians per exposure, and by the fact that drivers are about 50% more likely to be in crashes. When I taught defensive driving I believe the average driver was in one crash per year - every other crash was serious. If that were the case for cyclists, we'd have a lot more dead cyclists.

[SJE]

Jim: I don't know that there is any evidence of cyclists being too cautious, except that the unwillingness of most people to get on a bike is due, in no small part, to fear for their safety (IMO).

Regarding last clear chance: last clear chance only applies when the injured party was not contributorily negligent but had the "last clear chance" to avoid the injury. An example would be a runaway car moving at 5 mph, and you do nothing to avoid getting hit. In that case.

In the Washington v Garcias, the jury and judge found for the cyclist, but the judge granted a motion for a new trial. At the new trial, a new judge granted a directed verdict for the trucking company, finding that the cyclist had failed to set for a prima facie case of negligence and was contributorily negligent as a matter of law. It sounded like a very windshield perspective.

[SJE]

Jim: I am sure a lot of cyclists would like to steer clear of KMG's trucks, which I will do. AT the same time, the truckers also need to be careful: a few negligence judgments would nudge that along.

[Jim Titus]

Last year Barry Childress and I were unable to elicit much enthusiasm for limiting contributory negligence among the MD activists who actually show up to nag their legislators to do something--except that Sen Rosapeppe (sp?) immediately got it when I spoke with him at the annual Annapolis symposium. He gave me a suggested strategy, but I would have to have alot more time than I have to carry it out.

So in the mean time, I think that the strategy for MD should be:

(a) Somehow get all the MD activists to monitor the DC progress. If the DC effort were to reach out to MD, it is possible there would be mutual benefit, but otherwise MD can just be a free rider and wait for a good bill to be developed in DC. If it is enacted in DC, then we could try to sell a version in Maryland. I am assuming that the plan is for a collision between a ped and a bike, a ped and a car, a bike and a motorvehicle, or a motorcycle and a car, bus, or truck--but not between vehicles of the same type or between cars and trucks (unless AAA pushes hard to be included and then, why not?

(b)Use the existence of the contributory negligence doctrine as a strong argument for getting rid of ambiguities in the statutory scheme, to avoid surprise rulings that defeat a claim, as in Washington v. A & H Garcias Trash Hauling Co.

If any of you commenting on this are MD stakeholders willing to take a fine-tooth comb to the statute to identify ambiguities about cyclist duties please let me know. We'll know this time next week who our legislative chamption is likely to be.

[Jim Titus]

SJE. Regarding that Washington case. I see the argument for why cyclist was contributorily negligent. In today's terms, he was riding in the door zone of parked cars to the right as well as being too close to the truck. Not that I would go that way, but I can see how maybe a court could do that.

But I don't see the analysis of the truck's negligence. It's as if the mere fact of contributory negligence ended the case. I would have said that the truck was also negligent for driving so close to the cyclist and being unaware of his position--he knew or should have known that the cyclist was there so he had a chance to avoid the accident. And then he ran into him.

Anyway I take away the ideas that the big danger of contributory negligence is that ambiguous duties could spring to life and entirely defeat a claim, and hence, ambiguity is not our friend.

[contrarian]

It's as if the mere fact of contributory negligence ended the case.
That's exactly how contributory negligence works.

Anyway I take away the ideas that the big danger of contributory negligence is that ambiguous duties could spring to life and entirely defeat a claim, and hence, ambiguity is not our friend.
Not just in contributory negligence. Ambiguous law is always a problem.