Yesterday I wrote about how the criminal law system treats a road user who injures or kills another road user. But the civil law system is also in need of reform. In the Leymeister crash, the driver was found to be guilty of negligent driving and fined $313, but at least the family can sue her, right? Well they can, but it will be very difficult to win. Maryland is one of five states that use Contributory Negligence to establish damage awards. Contributory Negligence is
based on a policy originally established in England that stated a person who negligently causes harm to another cannot be held liable if that injured individual contributed to his own suffering and injury, even if it was only a very slight factor. For example, if Dave and Debbie were in an accident where Jane was injured, and Jane was only 5% at fault, she would recover nothing.
In fact, the standard is that if Jane was even 1% at fault she would recover nothing. With the numerous statements by the police that Leymeister's lane position was a "major contributor" to the accident, it will be easy to convince a jury that Leymeister "contributed" to his death.
This method of calculating damages is still followed in states with a pure contributory negligence system. In light of the potentially harsh result, most states have moved from the strict nature of a pure contributory negligence system to some form of a comparative negligence system.
There are only 5 states that use pure contributory negligence and Maryland, DC and Virginia are three of them (Alabama and North Carolina are the other two). The UK, who gave us this law, has moved away from it as well.
In a DC case, an injured cyclist was unable to get any compensation after they were hit by a truck driver making an illegal right turn. The cyclist was found to have contributory negligence for not anticipating that a truck would illegally turn into him. (Here's another Maryland case).
There is an alternative called comparative negligence.
In a comparative negligence system, the injured party may still recover some of his or her damages even if he or she was partially to blame for causing the accident. Plaintiff’s financial recovery may be reduced, or even prohibited, depending how plaintiff’s actions caused or contributed to the accident. In states using a comparative negligence system, a jury or judge determines the proportion of fault to be assigned to each responsible party.
There are variations of this - in some states the plaintiff can't be more than a certain amount at fault - but it is the basic model used in most of the United States.
In DC, the BAC's legislative committee is working on a proposal to change DC to a comparative negligence state. They're proposing a system based on Colorado's where the plaintiff needs to be less than 50% at fault, but passing the law is not as easy as it would seem to be. The Trial Lawyer's Association has to be convinced, which seems to be possible. Jim Graham and Tommy Wells appear to be supportive, but it might not pass unless it is limited to cases where pedestrians or cyclists are the plaintiff.
There was an effort to change the law in Maryland in 2007 but it was successfully opposed by the Maryland Chamber of Commerce, counties, insurance companies and other business groups.
‘‘Basically this legislation is going to mean more lawsuits for employers and more damages paid to people who contribute to their own injuries. And we think that’s a bad idea,” said Ronald W. Wineholt, vice president of the Maryland Chamber of Commerce.
The Maryland Association of Counties agrees: It’s a balance of whether local governments should spend more money on lawyers or on services.
‘‘From that perspective, citizens would rather the funds go to their needs. ... And when someone’s hurt and they can’t recover against somebody, it’s the government that comes in and takes care of the unfortunate,” said David Bliden, executive director of the counties association.
That's the solution? After you get screwed, you become a ward of the state?
Ellen Valentino, state director of the National Federation of Independent Business, said Maryland prides itself on contributory negligence as a pro-business policy.
David F. Snyder, vice president and assistant general counsel of American Insurance Association, said Marylanders pay the 12th highest automobile insurance premiums in the nation.
‘‘We just don’t believe there’s a margin of error in Maryland ... it would just get worse if you remove what we call a safety valve in the Maryland system,” he said.
Andryszak said he has seen comparative fault bills since 1966. They surface every four or five years, usually around an election, and they’re defeated each time, he said.
Many states have moved from contributory to comparative negligence, but none have gone the other way.
As near as I can tell, there has been no effort to change the law in Virginia.
All three jurisdictions should make a change from this archaic and overly harsh law and move to a comparative negligence law that strikes more people as fair. Doing so would possibly make cyclists (and pedestrians) safer and surely make it easier for them to recover damages when they've been injured by a negligent driver.
Interesting. Obviously contributory negligence has to go. I'm unclear of two things, though:
1) Why would trial lawyers be against comparative negligence? It seems to increase the possibilities for litigation by lowering the bar of proof for a plaintiff.
2) Why would limiting plaintiffs to pedestrians and cyclists make the law easier to pass? The effect of such a law would create weird situations: in a jurisdiction with a 50% threshold, for instance, you could imagine a situation in both parties (a pedestrian and a motorist) have injuries, both parties are deemed to equally negligent, but only one party (the pedestrian) is able to sue.
Posted by: guez | January 06, 2010 at 10:10 AM
guez, I don't know why. The first question came up at the BAC meeting and the lawyers in the room were perplexed. There was something about joint and several liability and the need to either include or remove it, but I don't understand it either.
On the second question, I only know that's what we're hearing from councilmembers. They seem to think it's more political palatable. But I agree that it should be included for all road users.
Posted by: Washcycle | January 06, 2010 at 11:33 AM
Your argument makes perfect sense if it comes from the point of view that cyclists are never negligent and it is always the automobile driver's fault.
The police made numerous statements that Leymeister's lane position (in the middle of the lane) was a "major contributor" to the accident because it was.
Now before everyone gets all militant on my ass for disagreeing with you, I would ask that you consider the following:
If a pedestrian walks down the middle of the street vs. walking on the sidewalk his chances of getting hit by a car a greater. It is a simple matter of statistics. There are cars in the street and there are not cars on the sidewalk. Regardless of where the pedestrian is walking, it is illegal to run them over in an automobile (in most states, anyway). However knowing this, most pedestrians are smart enough to be able to make the judgment call between the greater risk posed by walking in the middle of the street and the lesser risk provided by walking on the sidewalk.
I am not trying to advocate a 'get out of the automobile's way' mentality - I think streets should be more user friendly, but I also think it is incumbent upon cyclists to minimize their risks when riding amongst vehicles that are bigger, faster and cannot always see or hear everything.
The fact that there is so much discussion about drivers not looking out cyclists and so little discussion about cyclists looking out for themselves on this blog is just astounding to me.
Posted by: O2 | January 06, 2010 at 11:47 AM
O2,
1) Pedestrians are not allowed in the street in most cases. Cyclists are. So your analogy falls apart from the start. In most places in Maryland it's illegal for cyclists to ride on the sidewalk, and I don't think this road had sidewalks anyway.
2) Many cyclists are of the belief that riding in the center of the lane minimizes their risk when riding among vehicles. The law in Maryland at times recognizes this.
3) Even if you think this case did not represent an exception to the required shoulder-use rule, it very easily could have. Leymeister could have been preparing to make a left turn. A change in his intent still would have had the same result. So the main cause was not that he was in the wrong place (and I don't think he was) but that the driver was not looking at the road in front of her.
4) Even if Leymeister had been farther to the right, it is still possible (considering the narrow shoulder) that the driver - who was basically driving blind - would have hit him.
5) You may not be trying to advocate a 'get out of the automobile's way' mentality, but you are.
Posted by: Washcycle | January 06, 2010 at 12:06 PM
My point is not about whether cyclists have a right to ride in the street - I know they do. It is about minimizing risks while riding and why your blog does not advocate that more. If Leymeister was preparing to make a left turn, and was crossing the lane from the shoulder to the center, then he should have looked over his shoulder. To assume that drivers are looking out for you, can anticipate all of your moves, and see you clearly at all times is absurd, and proves my last point exactly.
Of course it is still possible for the car to have hit him if he was on the shoulder - my point is that that possibility was probably less.
You totally disregarded my last point, and that is that cyclists need to look out for themselves, and not assume everyone else is looking out for them.
Posted by: O2 | January 06, 2010 at 12:40 PM
Contributory Negligence needs to go. I know at least 5 people who have lost a case because of that law when the driver was clearly at fault and there were witnesses to back it up. It's amazing how a lawyer can say that a cyclist wearing a black jacket contributed to his/her accident even though and automobile ran a red and it was the middle of the day.
To add to the above post: I would say that cyclists are always looking out for themselves when riding on the road. It is in their best interest to do so since any collision will mean physical harm. If a cyclist gets in a crash it is probably for the same reasons an automobile driver would be in a crash. It was either their fault for driving recklessly, or the other persons fault and they were unable to safely maneuver out of the situation. I don't think cyclists should be faulted for not being able to anticipate an automobile doing an illegal u-turn in front of them without signaling.
Posted by: Neil Perry | January 06, 2010 at 12:58 PM
What is the level of proof required to show that a plaintiff's actions amount to contributory negligence? In other words, if Leymeister's family sues the driver for wrongful death, I gather that it won't be enough that the driver merely asserts that there was contributory negligence, even with the police report. Could Leymeister's lawyer successfully defend the lane position based on the specific facts that the shoulder was substandard in width and that there was a mailbox projecting into the shoulder at the scene of the accident?
Posted by: NeilB | January 06, 2010 at 01:38 PM
O2
I didn't disregard your last point. I do agree that cyclists need to look out for themselves and not assume that everyone is looking out for them.
But driving or biking does require some assumptions. For example, most people assume that if they are driving along in a single lane then another car will not ram them from behind. To pretend that no one can see you ever would be to act as though every car would crash into you from behind. Imagine how you might ride if you truly were invisible. You probably wouldn't ride at all as it would be too dangerous. That is proven by the fact that half of all cycling fatalities happen at night (when visibility is lowest) even though most cycling is done during the day. The fact is that we all drive and ride as though people can see us, that's why we place such an emphasis on lights and reflectors.
The driver who hit Leymeister wasn't looking at the road. It was effectively no different than if she had put a blindfold on. Had she actually put a blindfold on, it would be ridiculous to then blame Leymeister for the crash, but that's just what the police did.
If you're arguing that the probability of being hit by a car goes up when you ride in the center of a lane as opposed to riding on a 3' 4" shoulder, I think you're mistaken. AASHTO guidelines say that 4' is the minimum safe width for any space that is to be used exclusively by bicycles.
You're arguing that cyclists should never ride in the center of a lane, because doing so increases the probability that they will be hit by a car. I don't think that is true and I'd like for you to try and prove it. And even if it were true it might serve more as an argument for taking steps to make the road safer then to encourage cyclists to ride in the gutter.
Posted by: Washcycle | January 06, 2010 at 01:58 PM
NeilB, it is possible to prevail even if contributory negligence is proved through the doctrine of Last Clear Chance.
Under the doctrine of last clear chance, a plaintiff may recover, despite his own contributory negligence, if he can demonstrate that the defendant had a superior opportunity to avoid the accident
To recover under the last clear chance doctrine, plaintiff must prove by a preponderance of the evidence: (1) that the plaintiff was in a position of danger caused by the negligence of both plaintiff and defendant; (2) that the plaintiff was oblivious to the danger, or unable to extricate himself from the position of danger; (3) that the defendant was aware, or by the exercise of reasonable care should have been aware, of the plaintiff's danger and of his oblivion to it or his inability to extricate himself from it; and (4) that the defendant, with means available to him, could have avoided injuring the plaintiff after becoming aware of the danger and the plaintiff's inability to extricate himself from it, but failed to do so.
2 and 3 are slam dunks. 1 and especially 4 are more difficult.
Posted by: Washcycle | January 06, 2010 at 02:05 PM
I am amazed at the amount of research you have been putting into this end-of-year review of biking and the law. Very well done. Thanks for your efforts.
Posted by: Michael | January 06, 2010 at 03:33 PM
I never said that bicycles should never ride in the middle of the road, so don't put words in my argument. Take a breath. I said that cyclists should seek to minimize their risk. If they have to ride in the middle of the lane to avoid an obstacle on the shoulder, then that would be the path of least risk, wouldn't it?
"But driving or biking does require some assumptions." No, it does not. It is called defensive driving/riding. You do not assume anyone else on the road will act predictably or rationally.
"You probably wouldn't ride at all as it would be too dangerous. That is proven by the fact that half of all cycling fatalities happen at night (when visibility is lowest) even though most cycling is done during the day."
This above quote does not even make sense. How does your assumption of my discretion have anything to do with the fact quoted about cycling fatalities? If I was invisible, it would not affect my riding habits, because I ride defensively. Whether I am negligent or not, I am going to come out on the losing end if I get in a scrape with a vehicle that weighs 15x as much as I do.
By simply quoting AASHTO guidelines you are equating any 3'-4" wide portion of the roadway as being equally unsafe. Apart from that your quote is irrelevant. Do the AASHTO guidelines also recommend putting the dedicated bike lane in the center of the travel lane, or along side of it? How about between two travel lanes?
The travel lane is where cars travel, hence there is a higher occurrence of vehicles there. The shoulder is where cars less frequently travel, whether they are turning, swerving, meandering, playing mailbox baseball, what have you, HENCE THERE IS A LESS FREQUENT OCCURRENCE OF CARS THERE. I'm sure you spend enough time on the side of the road, or the middle, or whatever - see for yourself where most cars travel.
Posted by: O2 | January 06, 2010 at 09:13 PM
O2: I agree that people should try to minimize risk, where feasible. The questions are ones of balance and responsibility. Women walking alone at night in the city are at greater risk of rape and assault. Should the hypothetical woman stay home. What if she minimizes risk by driving to and from work, but is then attacked on her way to her car at 6pm? Under pure contributory negligence theories, we focus on her "fault" at being outside after dark, without a male companion, and find that she cannot recover anything. While this seems entirely hypothetical, there are a lot of cases where certain behaviors led to acquittal because the woman was "asking for it." The law and society has moved on by shifting the focus from the woman to the rapist.
Its the same story with bikes. We could all give up and drive around in hummers. But when we use the road in a responsible manner, and are injured by an irresponsible road user, it is galling for people to be pointing to something we "could have" conceivably done to reduce our risk, without considering that the larger degree of fault lies with the driver.
As it stands, the law that does not distinguish between hitting a cylist at 8am because you were not even looking at the road, and hitting a cyclist at 1am because he wearing black and was riding a bike without lights or reflectors.
The law should find no fault with the driver in the latter case, but fault with the driver in the first. As a result, the law will reward those who minimize harms, and not those who put themselves at risk.
As the current law does not recognize such distinctions, but punishes all cyclists merely for riding on the road, it is not only unjust, but inefficient from an economic and policy perspective.
Posted by: SJE | January 06, 2010 at 09:56 PM
O2
I never said that bicycles should never ride in the middle of the road
No but you did imply that they should rarely ride in the street. I'll show you how:
The travel lane is where cars travel, hence there is a higher occurrence of vehicles there.
knowing this, most pedestrians are smart enough to be able to make the judgment call between the greater risk posed by walking in the middle of the street and the lesser risk provided by walking on the sidewalk
As I follow your logic, it seems to be:
If cars are in the street, and pedestrians are smart to avoid cars by staying out of the street, then cyclists should also be smart and stay out of the street unless there is an obstacle on the shoulder.
If riding out of the street were safer than riding in the street then surely we'd see that sidewalk cycling is safer than riding in the street. But it isn't. On average it's more dangerous.
"But driving or biking does require some assumptions." No, it does not. It is called defensive driving/riding.
Defensive driving, which I used to teach, does not involve not making assumptions. Fundamentally, whenever we go on the road we are assuming that if people see us they will not intentionally hit us. And furthermore we assume that if a car is behind us, they can see us and thus won't hit us. It's true that that is an erroneous assumption as clearly some drivers are not paying attention, but the alternative is to never be in a situation where a car is behind you and that's simply impossible. What kind of defensive cycling would protect you from a driver who is coming from behind you and doesn't see you?
You do not assume anyone else on the road will act predictably or rationally
Really? Here's a scenario. You're approaching a green light at the posted speed limit of 35mph and there are cars stopped at the cross street. If you assume they're rational then they won't suddenly gun it into the intersection as you go through, but since you never assume they're rational, do you slow down to 5mph as you go through the intersection so you're ready to use evasive maneuvers.
Think of what a truly unpredictable and irrational road system would look like. I'm talking real chaos. It would be a death trap. Line markings, traffic control devices, speed limits, etc... would all mean nothing.
Take this scenario. You're on a two lane highway with just a double yellow line separating the two lanes. There is a car coming in the other direction and is about to pass you. Since they're irrational and unpredictable it is just as likely that they will move into your lane as stay in theirs. What would the defensive move be? Since you don't make any assumptions how can you possibly be sure they won't cross the double yellow line and hit you head on?
This above quote does not even make sense. How does your assumption of my discretion have anything to do with the fact quoted about cycling fatalities?
The point is that being visible is only of value if you think other road users play a part in your safety; if being able to see you means that they will behave more in the way you expect. We know that being visible is of value because bike fatalities go up at night.
If I was invisible, it would not affect my riding habits, because I ride defensively.
Really? Let's test that theory. Lets dress you head to toe in black, remove all your bikes lights and
reflectors, and cover your bike in black electrical tape. Then let's put your defensive cycling skills to test on the roads at night. Do you honestly think you'd be no more at risk?
By simply quoting AASHTO guidelines you are equating any 3'-4" wide portion of the roadway as being equally unsafe. Apart from that your quote is irrelevant.
True, other than the relevant part of my quote it is irrelevant. I am not however equating any 3'-4" wide portion of the roadway as being equally unsafe. I am saying that " 4' is the minimum safe width for any space that is to be used exclusively by bicycles." So I am talking specifically about space used exclusively for bicycles.
Do the AASHTO guidelines also recommend putting the dedicated bike lane in the center of the travel lane, or along side of it? How about between two travel lanes?
Actually sometimes they do put the bike lane between two travel lanes, but that isn't your point. What AASHTO recommends is not putting in a bike lane and not expecting cyclists to use a space unless it is of sufficient width. This shoulder was of insufficient width.
The travel lane is where cars travel, hence there is a higher occurrence of vehicles there.
I assume you meant the travel lane is where "all vehicles" travel? Because that's what it is.
Again your point seems to be that in order to avoid being hit by cars, bike should avoid riding where cars drive. That is neither a recipe for safety or a position to take to promote transportational cycling. Just as one robs banks because that's where the money is, cyclists use roads because that what goes everywhere.
Posted by: washcycle | January 06, 2010 at 10:30 PM
O2: to put it another way.
The question of whether cars drive in the middle of the road or on the shoulder is irrelevant to safe operation of a bicycle unless you believe that bicycles have no right to be in the road.
Posted by: SJE | January 06, 2010 at 10:35 PM
Mr. Washcycle, I was paraphrasing my own earlier posting, not trying to summarize yours.
Posted by: SJE | January 06, 2010 at 10:38 PM
I think the question for O2 is: where should Leymeister have been riding?
The lane was 9'7" wide, which is incredibly narrow for a two-lane road. If there was more room for the lane they would have made it wider, so we can assume that for practical purposes the road had no shoulder. A lane that narrow is too narrow for a bicycle and another vehicle to ride side-by-side safely, a passing car is going to have to leave the lane.
So where should a cyclist ride under those circumstances? Against the edge of the road or out in the lane? Or is it just too dangerous, and he should find another route or stay home?
I know what I would do.
Posted by: Contrarian | January 06, 2010 at 11:45 PM
fwiw, I do act "irrationally" at certain types of intersections even when I have the right of way by slowing down, if their are cars wanting to turn left into my path. I do slow down because defensive riding means, to me anyway, I shouldn't anticipate that they follow the law. But of course, that's based on a number of close calls.
Posted by: Richard Layman | January 07, 2010 at 05:56 AM
Hey Contrarian -
Not making assumptions is part of my point. Thanks for illustrating it so perfectly. Here is a picture of the accident scene that clearly shows the shoulder.
http://www.somdnews.com/images/10_07/bicycle_e100709a.jpg
It may not be up to standard AASHTO standard, but certainly looks wide enough and smooth enough to ride in.
SJE - You are confusing rights with responsibilities. I am not questioning the right of cyclists to use the roads. I have already stated that roads should be more user friendly.
WC - See that paved area between the white and yellow line? That's what I call a travel lane - and as I previously stated that is where most cars (not exclusively) travel.
Mr. Layman - I enjoy your blog. I would not consider your tactics irrational, particularly after several near misses. You are still alive because you understood the risk, regardless of your rights in the situation, and acted accordingly. That is the point that I am making.
I continue to maintain that, regardless of legal rights, the side of the road, when available, is generally safer for slower moving, less visible cyclists, because there are less cars traveling there.
Ultimately, all of us here are interested in the same thing - reducing cyclist deaths and injuries. We seem to be arguing about the best way to accomplish that. My point is that cyclists need to take more responsibility for themselves and ride appropriately to the risks and conditions presented, and that this forum seems dead set against promoting self responsibility or acknowledging any fault on the part of cyclists.
Your point is that we need to change the laws to promote better cycling. But a bunch of improved laws enforcing cyclists rights are not going to help you when you are dead on the side of the road, because you assumed that everyone else is looking out for you. A lot of drivers (and cyclists) are probably not fully aware of the their rights, responsibilities and privileges when using the roadways. More laws will not make them behave any differently. The only thing more laws will accomplish is more self-righteous chest thumping from your lot.
Posted by: O2 | January 07, 2010 at 08:36 AM
One concept that has not been discussed is the reasonable person standard. If a person A had a large pit with no barricades would it be reasonable for someone to go out of their way to look in? If they fell in they would be contributory negligent.
But if the pit was in the middle of the sidewalk with no barricades and a person fell in while walking at night, that is something that could happen to a reasonable person so no contributory negligence.
***************************
Let's not forget in the St Mary's fatality the police made some very misleading statements to the press, the shoulder in fact was blocked by a fallen tree and numerous mailboxes. A reasonable cyclist would not be weaving in and out of traffic.
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The fiscal and policy note for the 2007 bill I found very disturbing.
Which I read as to prevent a 6% increase in car insurance the bill was withdrawn.
Or stated differently if drivers and their insurance actually had to pay for the damage they do it would be a significant jump.
So I have to ask where is the accountability to make our road safer?
Traffic law = to protect drivers from criminal charges when breaking the law with their car.
Car insurance = to protect drivers from financial harm when breaking the law with their car.
Contributory Negligence = to protect drivers insurance from going up when they hit a person with their car by making the person they hit pay.
Crash costs per mile of roadway - MD in top ten worst
So no duh car insurance would go up. But how are roads going to become safer if there are far too little consequences for negligent driving?
Posted by: Barry | January 07, 2010 at 09:06 AM
this forum seems dead set against promoting self responsibility or acknowledging any fault on the part of cyclists.
I don't think that's correct. Most of these laws about criminal and legal liability that I've written about, I've written that they should be extended to apply to cyclists. I've acknowledged that Alice Swanson made a mistake in passing, on the right, a truck with it's right turn signal on. I've written about how critical it is for cyclists to be visible, to give pedestrians the ROW, to use hand signals etc...
Where has this forum failed to acknowledge fault on the part of cyclists? If you think the Leymeister case is one, I disagree. I don't believe Leymeister was even 1% at fault.
Posted by: Washcycle | January 07, 2010 at 09:14 AM
Looking at "at fault" information from places like Portland and other more reasonable places, cyclists are at fault ~45%, motorist at fault ~45% and unknown is ~10%. Maryland it's like 55% cyclists, 31% motorists and 14% unknown. This is a strong hint that there is a anti-cycling bias in Maryland. I've got reports about cyclist being at fault for riding too close to parked cars when they get doored and cyclists are at fault if they take the lane.
Anyway "the problem" is not when cyclists are at fault and they are accused of being at fault the problem is the police accusing cyclists being at fault when they should not be at fault.
There is nothing to talk about when there is an agreement of at fault.
Posted by: Barry | January 07, 2010 at 10:04 AM
O2: I am not confusing rights with responsibility. The two are intimately related, as they both describe legal relationships one party has with other parties.
I agree that cyclists have a right to the road (the law says so), and we have a responsibility to ride safely and defensively. I ride with colored clothes in the day, lights at night, wear a helmet, and ride defensively. I am therefore fulfilling my responsibility to other road users.
Posted by: SJE | January 07, 2010 at 11:15 AM
Well, O2 and Washcycle are both right.
The bicyclist should ride responsibly and safely. (O2)
The bicyclist can legally ride in the middle of the lane. (Washcycle)
But, when the bicyclist rides in the middle of the lane, depending on conditions, that can increase risk. (O2)
That you should never assume that all automobile drivers or all bicyclists ride safely, are fully engaged all of the time. (I can't claim, either while driving or bicycling that I do the right thing every moment will driving/riding.) -- both
So with a usable shoulder as an opportunity, albeit not used by the rider, he increased his risk. (O2)
And he died.
I would have stayed on the shoulder myself. And likely what happened to Leymeister wouldn't have happened.
These are tough kinds of examples that aren't good examples to generalize from. (E.g., you didn't see me blogging about the bicyclist killed in Toronto by the ex-politician, because both were absolutely wrong, and the bicyclist escalated the situation significantly, in part causing his own death. It's just not a good example to write about.)
Anyway, rather than focus your CWL on contributory negligence, I prefer a focus on making drivers fully responsible for negligence, and presumed to be at fault (as in the Netherlands and other European countries) in bike- or ped- car accidents.
This sometimes would give a pass to bad bicyclist and/or pedestrian behavior.
BUT IT WOULD REQUIRE A SIGNIFICANT CHANGE IN DRIVER BEHAVIOR, REQUIRING THAT THEY BE FULLY ENGAGED AT ALL TIMES, or suffer the consequences.
E.g., the woman who ended up killing the truck driver on the Bay Bridge would be in jail now because she killed someone because of her negligence, if the laws were different.
Who cares if you can sue?
I'd rather build a more robust system focused on reducing accidents in the first place.
Posted by: Richard Layman | January 07, 2010 at 02:38 PM
http://wjz.com/local/Driver.fined.crash.2.1410716.html
Posted by: Richard Layman | January 07, 2010 at 03:24 PM
Richard, I agree with the first two points you attribute to O2, but not the third.
The point is that the shoulder wasn't usable. If he had a 6 foot wide shoulder available and didn't ride it in, I might be with you on this, but he didn't. The police say the shoulder is 3' 9" which is too narrow.
And I call BS on it. If you look at the photo and measure the back wheel of the bicycle (I pulled it into a paint to zoom in) it is about the same radius as the distance from the edge of the road to the white line at that same point. A wheel is a little more than 2 feet round and certainly not 3' 9". Or, if you assume the guy in black is 6' tall (which would be tall) and measure him in the photo and then project the outside line of the shoulder forward to the foreground and measure the distance from that line to the white line, the ratio of that width to his height is 3.5:14 which is more like 1.5 feet. So I'm skeptical of their measurement.
That he died or that he would have been safer on the shoulder is false logic because you know what happened. People on the hijacked planes would have been safer driving on 9/11 but we know that flying is normally safer than driving. The question is: Is a cyclist normally safer riding in a narrow shoulder next to a narrow lane, or are they safer riding in the middle of the lane in that situation? And I believe that statistically the latter is safer (and that's been my experience as well).
None of which changes the fact that the problem was not where Leymeister was riding but that what the driver was doing was the equivalent of driving with her eyes closed.
Presumption of guilt is something that I think American's are pretty uncomfortable with - though it does exist - ironically in cases where one driver rear-ends another. The negligence element was #2 on this list.
Who cares if you can sue? The guy who was hit in Georgetown and is in very bad shape, with enormous medical bills, loss of work and possible lifetime pain and disability for starters. Mr. Leymeister's family too.
Posted by: Washcycle | January 07, 2010 at 05:10 PM