Maryland Judge reportedly rules that it's not illegal to crash into a cyclist in a crosswalk

Yesterday I reported that a 2nd cyclist was killed at the Matthew Henson Trail crossing of Viers Mill Road, that the driver in the last incident was charged with  "Passing a vehicle stopped for pedestrian at crosswalk" and acquitted.  Pulling it up from the comments on that post,  WUSA reported that the reason the driver was acquitted was that

The judge said because Towers was riding the bike, instead of walking it, in the crosswalk, he was not protected by the same law that protects pedestrians and people in wheelchairs.

It's a quirk in the legal code that both the Montgomery County State's Attorney and Towers' friends are now looking to change. 

That's unbelievable. Cyclists can legally ride in the crosswalk

21-1103b3: "In a place where a person may ride a bicycle on a sidewalk or sidewalk area, a person may also ride a bicycle from the curb or edge of the roadway in or through a crosswalk to the opposite curb or edge of the roadway."

The law that the driver was accused of violating was 21-502 c (in the section for Pedestrians' right-of-way in crosswalks)

Passing of vehicle stopped for pedestrian prohibited.- If, at a marked crosswalk or at an unmarked crosswalk at an intersection, a vehicle is stopped to let a pedestrian cross the roadway, the driver of any other vehicle approaching from the rear may not overtake and pass the stopped vehicle. 

And a pedestrian in Maryland is defined as a person afoot. There is no definition for a "cyclist" as near as I can tell. 

If this is accurate, then there is no law requiring drivers to not hit a cyclist in a crosswalk because they don't have the right-of-way. This doesn't apply to cyclists

Notwithstanding any other provision of this title, the driver of a vehicle shall exercise due care to avoid colliding with any pedestrian.

so there is no need to exercise due care. 

Basically livestock crossing the road have more legal protection than cyclists do. 

Does anyone know of any other judgements that decided that cyclists, when legally using a crosswalk, are entitled to the same protections as a pedestrian?

[And the balls on that driver. Going in and arguing that he did nothing wrong, because he killed a cyclist, not a pedestrian. How does he sleep at night?]

Comments

[jeffb]

And the balls on that driver. Going in and arguing that he did nothing wrong, because he killed a cyclist, not a pedestrian.

My hunch is that this was at the suggestion of his lawyer. By avoiding the traffic citation the driver (and his insurer) are in a stronger position when it comes to arriving at damages in the civil action.

Even more ballsy would be arguing some negligence on the part of the cyclist for not walking the bike across and thus avoiding paying any damages at all.

Remember - just because a cyclist was operating legally one can still assign negligence for failure to exercise care.

[David Tompkins]

I will preface this with the following disclaimer: I am a personal injury attorney who regularly represents cyclists and pedestrians in automobile injury claims.

The current state of the law in Maryland is that bicyclists are vehicles, not pedestrians. Full stop. You would not have to stop for a car crossing the street in a cross walk "illegally" or without the right of way, so you don't have to for a bicycle. Skateboards too.

I fully agree that this is a liability foundation for the civil matter to come, as Maryland still subscribes to the extraordinarily out of date contributory negligence standard. The cyclist may (probably) be found to be partially responsible for the collision (since he isn't a pedestrian and does not have the right of way in a crosswalk like a jogger might) and his family will collect $0.00 in damages form the driver's insurance carrier.

[DaveS]

Hi. I apologize for spamming this in comments on two articles here, but I want to spread the word and get some help:

The cyclist killed Sunday has no family here. Donations are being collected to help send his body back to his family in Columbia.

https://www.gofundme.com/2f9kejg

[Chris Slatt]

Sounds like Maryland needs the "A person riding a bicycle...on a sidewalk, shared-use path, or across a roadway on a crosswalk, shall have all the rights and duties of a pedestrian under the same circumstances" provision that Virginia has.

[Kolo Jezdec]

An employee of the St. Louis Cardinals Baseball Club was sentenced to 46 months in federal prison for illegally accessing an internet Houston Astros player database. 46 Months! And I believe a federal sentence means what it says, no time off for good behavior.

Yet, if this driver had been found guilty, he would have been fined $80! About a day's pay working at McDonald's! $80 for killing a another human being because Mr Orellana could not be bothered to proceed with caution at a crossing. And since the cyclist pedaled instead of walked, there is no penalty. Did Mr Orellana even say he was sorry?

Legal homicide.

[Kolo Jezdec]

The screen shot in your previous posting (7/18/2016) shows a sign at that crosswalk that depicts a person walking and a person on a bike, with an arrow pointing to the crosswalk. Is the state of Maryland liable for having placed what appears to be a sign that misleads cyclists to believe that they may legally pedal across the marked crosswalk? And shouldn't a motorist, seeing that sign, also be prepared to give way to a cyclist? It appears that the SHA is not even aware of the statutes...

Perhaps a lawyer (Mr. Tompkins?) can ponder these questions.

[washcycle]

Kolo someone said it well on the other post. You can legally ride your bike across the crosswalk, you just lose all the protection of the right-of-way if you do.

[Jim Titus]

I think it's a mistake to blame the Maryland vehicle code in this case. The problem is that there is an uncontrolled intersection at a place where there should be some sort of traffic signal. Ironically, SHA objected to even creating this trail crossing because it was afraid that these crashes would happen, but others insisted that cyclists should have the right to have such a crossing anyway.

Changing the statute mentioned to include drivers stopped for bicycles would create a very odd set of rules, unless bicyclists riding in a crosswalk had the right-of-way as they do in Virginia. That is, if a car is stopping on a high-speed road to allow a bicyclist who does not even have the right-of-way to pass, the driver who passes that car in the other lane cannot be presumed to necessarily realize that the driver is even stopping for a bicyclist.

The problem with giving cyclists in a crosswalk the right-of-way is that such a statute would simply cause SHA to post stop signs at every trail crossing with a crosswalk. And cyclists would have no more right-of-way than before, because when you have a stop sign you lose whatever right-of-way you would've otherwise had under the statute, not to mention that every law abiding cyclist would have to stop even when there is no traffic.

Realistically, it's tough being a pedestrian trying to cross a high-speed road in a crosswalk, and pedestrians have the right of way. If cyclists had the same rights, the call would be even less likely to change driver behavior because drivers would assume that the cyclist probably has a stop sign, and bicyclists would still have to slow down to a near crawl for drivers to be able to stop and allow them to pass.

In the future, this type of trail crossing should always have some sort of signalization, and trail advocates are going to have to except the fact that some trails won't get built as soon because funds have to be spent on traffic signals rather than paving a mile of trail.

Moreover, cyclists need to be taught to walk their bikes across highways with heavy traffic. While biking across such a highway can be more dangerous than being a pedestrian, walking a bike is safer than being a pedestrian because you can stick your bike out in front of the car to test whether or not it is going to stop and only risk destroying your bike.

[Jim Titus]

Also it's a cheap shot to say that the judge held that it's OK to kill a cyclist. There simply was not enough evidence to convict the driver beyond a reasonable doubt of any of the offenses charged. If the driver was charged with violating a law designed to protect pedestrians, then the prosecution charged him with the wrong offense. This probably is a case of careless or negligent driving, however, and if he was not charged with that I don't know why.

[washcycle]

it's a cheap shot to say that the judge held that it's OK to kill a cyclist.

Did anyone say that?

To your other point, I just don't believe that the intent of legislators was to exclude cyclists legally using a crosswalk when defining these crimes. That they intended for the law to not require drivers to "exercise due care to avoid colliding with any" cyclists. So I don't buy your assessment that there is a good reason for the laws to be written and interpreted this way.

The problem with giving cyclists in a crosswalk the right-of-way is that such a statute would simply cause SHA to post stop signs at every trail crossing with a crosswalk

Sure it would, kind of like the way women wearing short skirts causes men to holler at them. SHA would not be required to be in stop signs. They might choose to, but we shouldn't write laws to adjust to predicted terrible decisions by state employees.

Changing the statute mentioned to include drivers stopped for bicycles would create a very odd set of rules, unless bicyclists riding in a crosswalk had the right-of-way as they do in Virginia. That is, if a car is stopping on a high-speed road to allow a bicyclist who does not even have the right-of-way to pass, the driver who passes that car in the other lane cannot be presumed to necessarily realize that the driver is even stopping for a bicyclist.

How is that any different than how it is for a pedestrian? So a driver approaching the crosswalk and seeing a car stop - under current law - can look at who is in the crosswalk and if a pedestrian is there they have to stop but if a cyclist is they don't have to. How does that make sense? What purpose does that achieve? And if they can't tell...what? It seems the only choice is stop. It's just a ludicrous distinction.

So yeah, give cyclists the ROW in crosswalks like Virginia does. That doesn't seem hard to do. I think Virginia has decided that the stop signs at trail crossings pointed at trail users are illegal.

cyclists need to be taught to walk their bikes across highways with heavy traffic

I don't know about that. Seems unlikely to make a difference and seems even more unlikely to happen.

[Nancy]

I will never walk my bike through a crosswalk.

[DE]

I also am never going to walk my bike through a crosswalk. And even if I did, there's no way you are going to "teach" all cyclists to do it. It's a ridiculous expectation; might as well ask the wind not to blow.

The road design here is killing people, and MSHA is doing nothing about it. The courts are reinforcing that it's okay to run people down. It's all rather disgusting.

[Jonathan Krall]

FWIW, I was under the impression that the law in Virginia, that people bicycling in sidewalks and crosswalks have rights and responsibilities of pedestrians (except where noted), was pretty much universal in the USA. Similarly, people bicycling on roadways have rights and responsibilities of drivers of vehicles (except where noted). The latter one actually is pretty much universal in the USA.

Maryland needs to get on board with uniform vehicle/crosswalk codes. They also need to fix transportation safety problems in a timely manner. This isn't exactly rocket science. If MD SHA cared about people instead of cars, it would have been fixed already.

[Kolo Jezdec]

Does it bother anybody that even had this driver been found guilty, the penalty would have been $80, plus the the increased insurance rate he would pay for having 3 points on his license. If the human he killed would have been walking instead of pedaling, the fine would have been $80!

[washcycle]

Jonathan, I didn't have time to dig into it, but Maryland's law does say that where it matches up with the Uniform Traffic Code it should be interpreted in the same way as in other states (or something to that effect). It is possible that this language could support the idea that cyclists in crosswalks are pedestrians, but I don't know if that is from the UTC or how that is generally interpreted.

Kolo,

It's bothersome, but I'm not sure what the right solution is. Because it was an accident the points would have gone up from 1 to 3. But it seems to be in the case where it is fatal, maybe it should go up farther. Maybe people who are found guilty in a fatal crash should lose their license for a year - or the judge should at least be able to do take it away. There is also likely a civil case underway, but he may not pay a dime of any settlement.

What is the right penalty for this?

[Mike]

Jim Titus: that's ridiculous. It is reasonable to expect drivers to pay attention and allow cyclists to cross the street at places where the government doesn't want to spend $100k on a signal. It is utterly unreasonable and unnecessary to demand a signal at every crossing.

[Crickey7]

I think the judge felt that given the wording of the statute, he couldn't find the driver guilty. I think that's an overly crimped interpretation of the law, given that a car had already stopped.

[SJE]

I agree with crickey. If the law does not apply to bikes ridden in the crosswalk, then there is nothing to charge the driver with except failure to take due care.

[NeilB]

I'm sure that I read about a court case from an crash or citation in Montgomery County where the trial judge rule that even though the right of way law for crosswalks does not explicitly mention bicyclists, the law must apply to them as it does to pedestrians because it would be absurd to apply two different standards. The judge proposed a scenario where a driver approached a crosswalk in which pedestrians and bicyclists were crossing at the same time, saying that it would be wrong to conclude that the driver had to yield to the pedestrians but not to the bicyclists. I've spent the last hour searching for the article on the case, but I came up with nothing. Does anyone know about this case?

[SJE]

It may be absurd, but it may also be correct under the law. A trial judge who tries to extend the law can get slapped down by a higher court. It can be argued that the reason the law does not apply to mounted bicycles is that a fast moving bike does not give a driver time to react, and therefore the legislature decided to only make the law apply to pedestrians.

[jeffb]

The motorist in this case may have a really smart lawyer who just found this "quirk" in the law to help fortify their defense.

But more likely this has been known for awhile and is standard playbook.

So my guess is that there are other crashes involving a motorist striking a cyclist in a crosswalk where this "hole" in the law has been used for the motorist's defense.

[washcycle]

then there is nothing to charge the driver with except failure to take due care.

Except that that doesn't apply to cyclists either (see the post).

[Alyx Walker]

My name is Alyx Walker. I'm Frank Towers' 'adopted' sister, roommate, best friend. The judge wanted the driver to be put in jail for killing Frank, so it wasn't really an acquittal... the charges were dropped on the technicality. From what I understand from the prosecutor, the DA used the technicality in the traffic code that doesn't protect cyclists.

The prosecutor told me the day before they were hoping and expecting to have the driver receive a $500 fine, 3 points on his license, and 18 months in jail.

Either way, we need the law changed so it protects cyclists (and equestrians where applicable in Maryland). I'm grateful you guys are covering this because changes really need to be made. No one should have to be going through this loss again. It shouldn't have happened in the first place.

[SJE]

If the law does not cover cyclists, its not a "technicality", its the law. The blame lies squarely in Annapolis, not at the feet of the driver's lawyer.

[Bikelawyer]

I litigated the issue of the meaning of the word "pedestrian" in Ohio recently. The word is defined here in the same manner "a person afoot" but courts have held that it can be broader than this.
For example, in one case an appellate court case held that, for UM/UIM purposes, the word pedestrian is ambiguous and isn't limited by the "person afoot" traffic code definition such that a bicycle rider in a car/bike crash is eligible for UM benefits described for a "pedestrian" who is hit by a car. By declaring the term "ambiguous" the court used a broader view of the word which allowed the bicycle rider to fit in. In my case, the bicycle rider was hit by a drunk driver and tried to collect Medical Payments benefits under his auto policy. Same language as the UM case. Trial court ruled for my client. Nationwide appealed and won a 2-1 appellate decision despite the concession by their attorney that a person in a wheelchair would be covered. I had argued that "a person afoot" would exclude people who had no feet, people on crutches or other assist devices, people on seaways and wheelchairs and babies in baby carriages or persons on stretchers... the distinction made no sense in a policy designed to help pay medical bills for those hit by a car...
In a traffic case, a trial court ruled that the word "pedestrian" was ambiguous when a motorist was charged with hitting a person in a motorized wheelchair in a crosswalk. however, the court drew a distinction between MOTORIZED vehicles and self propelled vehicles.
Send me an email at BikeLawyer@me.com and i will be happy to send you my brief and copies of court decisions

[Crickey7]

I think there is some flexibility to interpret the law when it's fairly clear that an omission from a defined class is both unintended and illogical. Yes, the judge risks being overruled. But the flip side is that if it goes up for appeal, it could end up being ruled in support of the more broadly interpreted way and thus become precedent. I don't see how we'd be worse off had the judge taken that approach.

[thisguy]

It sounds like a car stopped to allow the victim to cross, but then a car behind him passed and hit him just as he was entering the second lane.

This is why I rarely take advantage of the politeness of motorists who yield to me when there are two lanes, busy traffic, and no traffic controls. I just wait until both lanes are clear whenever possible.

I hope they fix the damn intersection.

[KevA]

Only after this incident did I notice that just before this crosswalk on either side of the MHT, there is a sign that says CYCLES WALK TO CROSS. Wonder if this could have been used for the defense in this case? I would assume that all signs should be legally obeyed and are not posted just as recommendations. However, the signs do look brand new and could have been installed just this week in response.

[Gene S.]

The thing being missed here (+ by the judge) is the failure of the motorist to use DUE CARE in the operation of his/her vehicle. Any driver's manual I've ever seen indicates you should not pass a vehicle that has stopped at a crosswalk - since you can't see what may be moving into the lane in front of you from the 'blind spot' of the stopped car. The default assumption must be that the stopped car is an indication of someone/something moving across the road.

[Gene S.]

To clarify my position: By passing the stopped car at the cross walk w/o slowing/stopping to see what/who might be crossing into his path, the driver was in violation of the law. He was in violation of the law even if there had been NOBODY in the crosswalk!

[washcycle]

But the law says that a driver "shall exercise due care to avoid colliding with any pedestrian." It doesn't say anything about avoiding a collusion with a cyclists. So due care doesn't apply (if we're being literal, which I don't support).

[contrarian]

Jim Titus wrote: "The problem is that there is an uncontrolled intersection at a place where there should be some sort of traffic signal." But a crosswalk is a traffic control, it's listed in the Manual of Uniform Traffic Control Devices. The problem is that it's a traffic control whose meaning is ambiguous, many people don't understand the meaning of, and many people who understand its meaning ignore anyway. That's true everywhere, in Maryland you have the additional complication that the legislature gave cyclists the ability to ride in crosswalks without clarifying what their rights and duties are when doing so.

Jim also wrote: "The problem with giving cyclists in a crosswalk the right-of-way is that such a statute would simply cause SHA to post stop signs at every trail crossing with a crosswalk." He's probably right -- that's what happens in Virginia -- but from a legal perspective that just makes the problem worse. A stop sign is a traffic control that only applies to operators of vehicles on a roadway, it has no effect on pedestrians. So adding a stop sign to a crosswalk just confuses right-of-way even further.

The problem is that highway designers want to have a pedestrian crossing where pedestrians don't have right of way. Under the MUTCD, the only way pedestrians don't have right of way is if there is a traffic signal: either Walk/Don't Walk sign or a red light/green light. So if there is a crossing, and you don't want pedestrians to have right-of-way, you can either signalize the crossing -- or eliminate the crosswalk. Clearly this crossing needs to be signalized -- or even more radical, made grade separated -- but I think that eliminating crosswalks is overlooked as a solution for crossings. Pedestrians don't need painted lines to tell them where to cross, they can look across the street. Eliminating the lines eliminates the ambiguity, and makes for safer crossing.

[KevA]

On my weekend run thru this crosswalk I waited patiently as the only vehicle coming down Viers Mill did not stop for me...just happened to be a MoCo firetruck with no lights or sirens blaring. I hope my sarcastic arm gestures towards the crosswalk were observed on their way by. Incidentally on the return cross an hour later, three cars (one in each lane) stopped well in advance as I gave them a polite wave (as I always do).

[washcycle]

Despite your noble efforts, I don't think there is enough polite arm waving in the world to solve this crossing.

[Patricia Kovacs]

I didn't read through all the comments but there is a case in Ohio which ruled that a cyclist has the same rights as a pedestrian in a crosswalk. A motorized scooter in this case does not have the right of way, however. Here is a link:https://www.supremecourt.ohio.gov/rod/docs/pdf/98/2006/2006-Ohio-7320.pdf

[DMJ]

Sad. Another cyclist in crosswalk death in Waldorf.

http://wtop.com/charles-county/2016/08/teen-cyclist-dies-struck-van-waldorf/

[Timothy 53]

The judge pulled a Dred Scott type decision: Bicyclists are so inferior that they have no rights that motorists are bound to respect.