TheWashCycle

Bishop in fatal Palermo crash pleads guilty, prosecutors to ask for 20 year sentence

Former Episcopal bishop Heather Elizabeth Cook pleaded guilty Tuesday to four counts related to the December drunken-driving death of bicyclist Thomas Palermo in North Baltimore.

She pleaded guilty to one count of automobile manslaughter, which carries a maximum penalty of 10 years; leaving the scene of a fatal accident, which also carries a maximum penalty of 10 years; and driving while under the influence and texting while driving, which both bring a maximum penalty of one year.

I can't say I'm too surprised, since in cases like these, it's my experience that the accused usually pleas, but the sentence prosecutors are seeking would be the longest I've ever heard of in the region. 

Prosecutors said they would ask for a sentence of 20 years, with all but 10 years suspended, to be followed by five years' probation. Judge Timothy Doory scheduled sentencing for Oct. 27. He said he would not sentence Cook to any more time than prosecutors are seeking but could give her less.

Still local bike advocates don't think it's enough.

Bicycle advocates Liz Cornish of Bikemore and Nate Evans of Bike Maryland attended the hearing and said they did not believe the sentence prosecutors are seeking is sufficient. Tougher penalties would deter others from committing similar crimes and contribute to a greater awareness of the "immense responsibility that comes with operating a motor vehicle," Cornish said.

Texting while driving, hit-and-run driver who killed Hagerstown cyclist sentenced to 5 years

Nadine Rager, a Western Maryland woman who struck and killed a cyclist while she was texting and then drove away, pleaded guilty to negligent manslaughter by vehicle and was sentenced to 10 years in prison, all but 5 suspended. 

Circuit Court Judge M. Kenneth Long Jr. sentenced Nadine Louise-Nicole Rager, 24, of Abbey Lane to serve 10 years, but suspended five years and gave her 165 days of credit for previous time served.

Long also ordered Rager, who pleaded guilty to negligent manslaughter by vehicle, to be on supervised probation for five years upon her release and pay restitution of $1,979 to the family of John William Bushman Sr. to cover funeral costs.

In addition to texting while driving,

Investigators also determined that Rager was traveling home after visiting a drug dealer to purchase spice, or synthetic marijuana, and also had smoked some of the illegal substance earlier in the night.

Assistant State's Attorney Leon Debes said he learned that Rager was "not a very good person," noting several instances in which she lied about the events that unfolded the night Bushman was killed.

He told the judge that Rager was disrespectful to family members when she was jailed and showed little remorse for what had happened.

Meanwhile the defense argued that she was the victim of abuse

Assistant Public Defender Loren R. Villa said that Rager, also a mother of a young child, endured a difficult upbringing, and was abused and molested when she was a child.

She struggled with substance abuse and got mixed up with the wrong crowd, Villa said.

Bushman had had trouble with the law, but was trying to turn his life around. He was riding a bike to work rather than drive on a suspended license. 

Bushman and Rager were both traveling west along West Washington Street when the crash occurred. Rager, who was driving her boyfriend's 2010 Mazda 3, fled the scene without stopping, prosecutors said.

About 15 minutes after the accident, a passer-by spotted Bushman's body lying in the road and alerted authorities. The collision left pieces of the car behind, and investigators were able to identify the make and model of the vehicle

Without knowing the extent of his injuries, one has to wonder if 15 minutes would have made a difference here. That can be a very long time for someone in trauma as I understand it.

And she's a repeat offender here.

Rager's previous record includes probation before judgment for driving while suspended and using a handheld telephone while driving, prosecutors said.

Those charges were filed in 2014, but the pleas were entered on Feb. 5, a week after Bushman's death, according to Washington County District Court records.

Online court records indicated Rager also had an earlier conviction for using a handheld telephone while driving.

Some piece of work. 

On the one hand, the only other Maryland driver I know of who was sentenced to as long as 10 years for a fatal bike crash is former Terrapin football player Quinzy Fraser. [His sentence was suspended to eight years, of which he should be about half way done now. But I remember about 2 years ago he was up for parole, and I can't find him in the Maryland Corrections system, so who knows].

On the other hand, that sentence seemed a little short for someone who was, like Rager, a repeat offender, who drove recklessly and then left the cyclist to die. 

 

Cyclist secures $21M verdict in Virginia Crash

Michael Sprick, who was struck from behind while riding on the shoulder on Route 100 in Pulaski County, VA, won a $21 million settlement (with $7 million in attorney's fees) in January. 

The settlement is "one of the largest personal injury settlements ever recovered in Virginia" wrote U.S. Magistrate Judge Robert S. Ballou.

The article at Virginia Lawyer's Weekly is behind the paywall and mostly about how hard the lawyers had to work to win the case. Sprick was in Germany, which created language issues and meant the billing was in an unorthodox format, since they're blind to retail cost. At one point they thought Sprick would die and they had to work with the insurance company to get the money to fly him back home. The truck was owned by a subsidiary of Hostess, which went bankrupt during the process. Still, most of the litigation was about damages, not who was at fault. Here's a more available article. 

Witnesses claimed the truck drifted onto the shoulder and hit Sprick from behind, sending him flying 105 feet. The driver claimed that a another vehicle forced him to the right. The driver was convicted of reckless driving and driving on a suspended license, and sentenced to a $500 in fine (with another $100 suspended for good behavior) and a suspended 90-day jail sentence back in 2011. 

Catania and Bowser on replacing contributory negligence statute

Via All Walks DC. 

Do you support the bill introduced by Councilmembers Grosso, Wells, and Cheh to replace the contributory negligence statute as it applies to pedestrians and bicyclists with comparative negligence?

David Catania: Yes.

Muriel Bowser: It’s an issue that deserves further consideration. I know a lot of states have a comparative negligence standard and it gives bikers legal protections so they have some redress even when they were partially at fault for an accident. But, I’m also interested in knowing why bikers deserve unique treatment compared to victims in other personal injury cases. There are also other solutions to help protect bikers. MPD needs to be better trained on the laws in place to protect bikers. We need more protected bike lanes throughout the city so accidents never happen. We also need to train both drivers and bikers to share the roads and drive/ride safely.

If Muriel Bowser wants to end contributory negligence in all cases, that's a possibly good proposal, but it's not one that's on the table right now. If she wants to say that either everyone gets a life vest or no one does, that's a bad proposal. 

Wilder's insurance denied his claim because cyclists should avoid crashes with lawbreaking drivers

Shane Farthing of WABA has a good long essay on the messed up standard by which cyclists in DC must operate in order to seek relief from insurance companies and the courts. In it he has a denial letter to Evan Wilder, who many may remember was passed too closely by a driver who then slammed on his brakes resulting in Wilder hitting the truck from behind. In it they say that he contributed to the crash by failing to keep a careful look-out. Here's the video for thos who are unaware. The whole thing is a good read.

Examining D.C. Bike Laws: Who’s at Fault?

The DC Bar will be hosting a forum on DC bicycle laws with WABA executive director Shane Farthing (a recovering lawyer himself) later this month.

As an increasing amount of road space in the District of Columbia is safeguarded for cyclists, liability is still not easily determined in bike accident cases. In light of the recent introduction of the contributory negligence bill, join us in examining D.C. bike laws, new legislation and the impact D.C.’s contributory negligence defense claim has on D.C. cyclists. We will hear from Washington Area Bicyclist Association (WABA) along with plaintiff’s side view of litigating cyclists’ personal injury claims. Bring your favorite lunch and get ready for this exciting helmet dropping program. All are invited!

Sorry no CLE credit. 

D.C. Bar Conference Center
1101 K Street, NW, Conference Center
(Metro Center Station)
Washington DC 20005

Bicycle and Motor Vehicle Collision Recovery bill hearing this Monday

There will be a hearing on the Bicycle and Motor Vehicle Collision Recovery Act of 2014 this Monday and if you can go and testify in favor of it, you should. The bill would allow crashes between cyclists and drivers to be adjudicated on a Comparative Negligence Standard instead of the current Contributory Negligence standard. This is probably the most important bike law proposed in DC (or MD or VA) since this blog was started oh so many years ago. I haven't been writing about it very much lately, because so many other places have.

Here's GreaterGreaterWashington on it yesterday.

The DC Bicycle Advisory Council will be voicing their support, and so will WABA.

If you want to testify, you have to sign up by the end of today.

For those wishing to testify, please contact Nicole Goines at 724-7808. Include your name name, address, telephone number, and organizational affiliation, if any, by 5 pm Thursday, September 25, 2014.

And here are some old posts of mine on the subject (but there are more)

Back in 2008 - Contributory Negligence and Last Clear Chance

A wishlist item - CWL 2009 #12 Comparative

About Maryland's - Two Chances to Reform Contributory Negligence Doctrine in Maryland

And about Grosso's bill - Grosso introduces bill to change car-bike crashes from contributory negligence to comparative negligence

3 of 4 citations upheld against driver in Trish Cunningham fatality

Whitney Decesaris, the driver who hit and killed Trish Cunningham on Riva Road just south of Annapolis had one of her four traffic citations waived, for the odd reason that her driving was actually worse than what she was cited for. 

Decesaris had avoided criminal charges, when a grand jury opted not to indict her, but still received "four traffic citations that would accrue points against her driver’s license and carry a total of $2,000 in fines. She appealed the citations..."

[District Court Judge Robert C.] Wilcox found her guilty of three of the four traffic citations — failure to exercise caution, negligent driving and failure to control speed — each carrying a maximum fine of $500. Saying there was no evidence that Decesaris made any attempt to drive around Cunningham, he dismissed a charge of driving left of the center line and unsafe passing.

If she had tried to avoid hitting her, her punishment would have been worse than for not paying attention and running her down from behind. That seems wrong to me. 

This part is pretty amazing too

A defense witness, Richard Garden, a Severna Park oral surgeon, said he was driving behind Decesaris and did not see the cyclist.

“I really didn’t see the van do anything at impact,” Garden said. “I saw it jerk to the left, but not much.”

Garden said he drives that portion of Riva Road daily, and was talking with his wife by cellphone when the collision occurred.

What??? I wonder why he didn't see the cyclist. It couldn't have been the phone call he was making. 

The lawyer said that the reason that Decesaris fought the tickets was that she wanted her "day in court." She's entitled to that, but I don't buy it, and I found it particularly galling and callous. Especially since her story doesn't match what witnesses said. 

Decesaris wept as she said she saw Cunningham climbing a hill ahead of her mini-van, “swerved to avoid hitting her, and I heard contact with my vehicle.”

Neil Tatterson testified that he was driving behind Decesaris, that he saw Cunningham ahead of them both and that he did not see Decesaris’s brake lights come on before she struck the cyclist. He said Decesaris did not swerve until she hit the bike.

 It's likely she fought the tickets in the hope of avoiding some civil liability. 

Pleading guilty, paying a ticket by mail and civil cases

My wife stumbled upon a case recently in which the DC Superior Court ruled that paying a civil fine for a traffic ticket by mail is inadmissiable in a related civil action. This is different in than a formal plea of guilty to a traffic offence, which is admissable. (See Frost v. Hays, 146 A.2d 907, 908 (D.C.1958)).

They further point out that 

Many courts have considered the precise issue whether payment of a traffic fine may be admitted as evidence in a related civil case. Virtually without exception, such evidence has been deemed inadmissible. Within the past decade or so, the Supreme Judicial Court of Massachusetts, in ruling on the issue, cited, merely as examples, no less than nine such holdings and stated that it had found “no case to the contrary.”

They also note that the fact that one is ticketed is also inadmissable. It constitutes the opinion of the police officer making it hearsay. The officer would need to come to the trial and be available for cross-examination for mention of the ticket to be admissable. 

So if you get a ticket from a cop and they're wrong, it doesn't screw you in a civil case, even if you pay the ticket. 

Getting word out about the BSA2013

From a recent Dr. Gridlock chat:

Q1: Dr. G, I commute by bicycle to work each day and I follow all traffic controls. I understand that D.C. recently enacted a law that allows me to proceed through the intersection with the Walk light goes on, rather than another 1 or 2 seconds for the light to turn green (many intersections have a delay to allow pedestrians (and now bikers) to get a head start). Unfortunately I've had the experience that some drivers get angry when I start on the white Walk light, thinking I am running a red, which I don't think I'm doing and which I don't want to do. Can you clarify the law now in DC?

Dr. G: I think you're referring to the Bicycle Safety Amendment Act of 2013.

Here's the active part: “(a) A bicyclist may cross at an intersection while following the pedestrian traffic control signal for the bicyclist’s direction of travel unless otherwise directed by traffic signs or traffic control devices. (b) A bicyclist may cross an intersection where a leading pedestrian interval is used.”

Q2: Wait--I don't get this. I thought bikes needed to follow traffic laws. But then why are they allowed to cross based on pedestrian walk signs?

Dr. G: I think the idea was to give cyclists a little more protection from turning motorists.