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By Bob Mionske
A few weeks ago (see Can’t we do better?), I posed the question “What do you think can be done about cyclist safety?” in response to a question from C.S., who asked
We as a club are going to do more .We want Ed (Farrar)’s accident and situation to help change not only cycling in our community but our state and country. Ed has always showed and taught us that bikes matter. He did it by example and always with grace and dignity. Can you help us? What should be our next step in bike advocacy? How do we re-educate our community about bike safety and rider vulnerability? How do we take a stand against vehicle aggression?
I received many responses from Legally Speaking readers; however, none of the responses directly addressed C.S.’s question about what his club can do, so I posed the question again (see A time for thanks):
What steps can a club take for bicycle advocacy? What can a club do to improve bicycle safety, protect vulnerable road users, and stop aggression against cyclists?
This time, I received a handful of responses. This points to an interesting problem. We all have our own ideas about what an individual cyclist can do to be safe — ideas which can sometimes be the subject of intense debate amongst cyclists — but it seems that few, if any of us, have given thought as to how we can organize to advance our cause, and what we would ask for once organized. Perhaps that is the nature of cycling — although we all love cycling, we sometimes have very little else in common. Given that, perhaps it’s not surprising that we might not always agree on what needs to be done.
And yet, we all apparently do agree that something needs to be done, even if we haven’t quite figured out what that something is. And maybe that agreement is a start. With that in mind, let’s take a look at some of the comments that came in.
First, C.W. wrote to District Attorney Charles Branson regarding his decision not to file vehicular homicide charges against the driver who killed Lt. David Dillon. Mr. Branson wrote back to C.W., who wanted to share the response with me:
I understand your anger and frustration in the death of Lt. David Dillon. He was a friend and colleague of mine and he is sorely missed. Unfortunately, the Kansas Legislature and Kansas Courts have plainly stated that bicycles and motorcycles share the same status as any other vehicle on the road, and again unfortunately, they do not receive any special consideration given their delicate nature versus a 3000 lb. machine.
Mr. Van Meter will be cited for the traffic offenses he committed. However, due to Kansas law and Supreme Court interpretation, his actions by law are not criminal. Traffic infractions are not considered criminal offenses. The Supreme Court has determined that there has to be more than mere negligence on the part of a driver to be held criminally liable for the death of another. It is not a matter for me to agree or disagree but apply the law as I am sworn to do.
Below this email is a copy of the leading Supreme Court case [see Kansas v. Krovvidi] dealing with this type of issue. It has a good discussion of the inherent problems with how our law is written. It should be of great interest to those in the bicycle and motorcycle community and hopefully with its publication can become a discussion tool for how our laws should be changed.
Charles E. Branson
Douglas County, Kansas
Many attorneys, including myself, might disagree with Mr. Branson’s interpretation of Kansas case law. One of the elements that is needed to prove vehicular homicide is a “material deviation” from the standard of care that that a reasonable person would observe under the same circumstances. While the Kansas Supreme Court has indeed said that this “material deviation” requires something more than simple negligence, it has also been quite clear that gross negligence is not required—a material deviation falls somewhere in between.
Thus, simply failing to notice a cyclist on the road, while negligent, does not rise to a “material deviation.” But what if the driver fails to notice a cyclist on the road because the driver is simultaneously adjusting the radio while talking on the cell phone—is that level of distraction still only “simple negligence”? Or is it something more than simple negligence? Does it fall somewhere between simple negligence and gross negligence? District Attorney Branson apparently believes that it does not amount to anything more than simple negligence—even though there is nothing in Kansas v. Krovvidi to support that belief. Inattentiveness alone, without something more, is not a “material deviation” from the standard of care a reasonable person would observe. However, in Lt. Dillon’s death, there was “something more” than inattentiveness—there was simultaneous operation of two different electronic devices. Does that amount to the “additional aggravating factors” required by the Kansas Supreme Court? According to the Court,
… the manner in which a defendant operates his or her vehicle under the totality of the circumstances presented is the proper focus of an inquiry concerning the element of a “material deviation” required for conviction …
Under District Attorney Branson’s interpretation of Kansas case law, operating a motor vehicle while simultaneously talking on the phone and adjusting the radio does not amount to more than simple negligence. Perhaps that reflects a recognition that the average driver is so distracted by electronic devices, personal grooming, and other activities that distract from driving that doing so does not amount to a “material deviation” from the standard of care of a reasonable person—or at least, the average person. Perhaps it reflects a pragmatic recognition that a jury composed of distracted motorists would not be likely to find that a fellow distracted motorist materially deviated from the standard of care of a reasonable person.
But perhaps it’s also an abdication of duty. If the District Attorney is unwilling to argue that distracting oneself by talking on a cell phone while adjusting the radio satisfies the “additional aggravating factors” the Kansas Supreme Court is looking for, then the District Attorney may in fact be establishing that such behavior is nothing more than simple negligence by sending the message that drivers won’t be prosecuted for vehicular homicide if they kill somebody while busy distracting their attention away from the road with electronic devices.
This gets to a point G.K. made about sending a different kind of message:
What I think we need is an aggressive program of highly publicized civil litigation against drivers who kill or injure cyclists. In my view the reality that you can and will be held accountable if your intentional or negligent actions do serious harm to a cyclist is the only thing that will resonate on a sufficiently large segment of drivers to make any real difference. What we need is a set of lawyers who are willing to take on such cases strictly on contingency, along with some advocacy group that is willing to publicize each and every lawsuit filed on behalf of a wronged bicyclist.
One other step that needs to be taken is pointed out in your story about Kyle Van Meter. It is absolutely clear that cell phone use (and other distractions like putting on make-up, fiddling with a GPS, reading the paper etc.) in the car is killing more innocent victims (cyclists, motorcyclists, pedestrians, pets) all the time and our legislators have got to follow the lead taken in California by banning such activities with steep penalties. I don’t know exactly what the statutory language should look like, but we need laws that effectively say this: “You can be as distracted as you want while driving your vehicle, but if you harm anyone while distracted you will go to jail.”
G.K. isn’t the only reader who believes that society needs to send a message to those who willfully distract their attention away from the road:
• Maybe we (cyclists) as a group need to form a P.A.C. to lobby Congress at the State and National level to get laws on the books regarding cyclist’s rights and amend those laws that are inadequate in providing appropriate penalties for those who operate a motor vehicle in a manner which endangers or kills a cyclist through negligence or malice. In this era of alternative fuels/transportation there will be many more cyclists on the roads and that will/may increase the number of cyclist/motor vehicle incidents.
• Bob, it seems to me that the bottom line is that votes (and money, which buy the votes) speak. In short, the squeaky wheel gets the grease. In regards to the politicians, and changing laws, the only way to do that is for cyclists to make their voices heard loud and clear. We are outnumbered, after all, and cycling is not viewed as a necessity (whereas speedy commuting is). The only way to overcome that numerical inferiority is to be active and let the politicians know that we will hold them accountable for their votes. Quite often politicians listen to vocal minorities, and it’s because they’re afraid of the consequences next November if they don’t. In short, we can’t sit on the sidelines and expect things to be changed – we have to be active as a community.
• The situation is not unlike the drunk driving issue in general. Correcting the drunk driving issue required (and still requires) several things to occur. First, the public has to decide that driving drunk is a crime. Second, the police have to believe that it is a crime and actually charge the drivers with a crime. Third, the judiciary has to believe that it is a crime and enforce the laws that are on the books. Until all 3 occur, the situation can and does not improve.
• I think what needs to happen is that the laws need to change so that there are REAL consequences for the kind of violence that is focused on cyclist. Nothing will change until there are real consequences to people who injure and kill cyclists with their cars. ALL Police (City, County and State) should have mandatory training in what the laws are, how they are to be implemented (not left to interpretation by individual police officers). I think the training should also include real time experiences riding on the streets they patrol. That way the Police can gain first hand experience with the dangers cyclists face on the roads.
I also received a response from an attorney who believes that District Attorney Branson interpreted the law incorrectly, but nevertheless made an understandable decision, and as other attorneys (including District Attorney Branson) have argued, lays the blame for the situation at the feet of the legislatures:
As a local cyclist and attorney, the death of Lt. Dillon and the failure of the law to punish the wrongdoer has bothered me deeply. When I first heard of Mr. Branson’s decision, I too was bothered by it. In my mind, while a close call, this accident was a violation of Kansas’ vehicular homicide statute and should have been brought. Unfortunately, the case is a close one and the D.A. has a responsibility not to bring charges against those whose conduct is not clearly a violation of the law. As D.A. his duties do not run to the victim or even to his constituencies, but instead necessarily run to the integrity of the criminal justice system itself and to society as a whole. While this seems a close call to me, it was an understandable decision by our D.A.
The real failure in this case can be found with our legislators. Our legislators wrote this statute in such a way that to find someone guilty their actions must create “an unreasonable risk of injury” and must be a “material deviation” from the standard of care. K.S.A. 21-3405. This “material deviation” phrase has been interpreted, correctly I would argue, to mean that a driver must be guilty of more than just negligent driving; however, subsequent case law has taken that “something more” and raised the bar to an almost impossible height in most situations involving death by vehicle. The standard is supposed to be less than the “reckless conduct” standard found in K.S.A. 21-3201, but the application of the law does not seem to recognize the difference. Frankly, poorly drafted statutes are all too common and their affects tend to linger for decades.
Not every reader, however, agrees that the laws must be changed. Offering a different perspective, S.I wrote:
I don’t think much can be done about cyclist safety by getting harsher with motorists that hit cyclists. The problem is that for every inattentive driver who hits a cyclist, there are myriads who are engaged in similar behavior and do not hit anyone. So even if there was a very harsh penalty for killing a cyclist who was doing nothing illegal, the incidence of such crashes is so rare that I seriously doubt the behavior of motorists in general would change by any significant amount. Most motorists would understandably and reasonably assume (probably unconsciously) that they are never going to hit a cyclist, and so the harsh penalties would be irrelevant to them.
This is not like drunk driving, where the root problem can be objectively recognized and identified (by measuring alcohol levels in the blood). Inattentive driving is practically impossible to recognize until it’s too late, so, practically speaking, I see no way to inhibit it significantly through legislation and enforcement. In fact, while the way one avoids drunk driving is clear (don’t get in the car when drunk, or don’t choose to drink in the first place), how one can avoid inattention, even if one wants to, is not clear at all. I mean, “don’t use a cell phone while driving” is only scratching the surface of this problem. The fact is, if you’re paying attention to one thing you’re likely not paying attention to something else. No one can be paying attention to everything all at once.
S.I. has touched on a point addressed in a New York Times article on distracted driving—everybody’s doing it. And as long as everybody’s doing it, it’s not likely to be taken seriously, even when it results in fatalities.
Of course, there was a time when drunk driving was socially acceptable too — everybody did it… until the victims of drunk drivers organized and convinced the public, and the legislatures, and the criminal justice system, that drunk driving ought to be treated as a serious offense. But what about S.I.,’s argument that drunk driving is fundamentally different from distracted driving? Is it fundamentally different, or is the difference one of perception rather than reality?
We know that driving while using a cell phone results in a level of driver impairment equivalent to a .08 blood alcohol content — in other words, if you’re on your cell and driving, you’re impaired as you would be if you were DUI. Of course, as S. I. points out, distraction sometimes happens without our even being aware of the distraction. But nobody makes a phone call — or applies make-up, or reads a newspaper — without being aware that they’re doing so. Driving inattentively and failing to notice that the light is red—an issue discussed in Kansas v. Krovvidi — is an entirely different situation from being willfully distracted. The question raised by the cases of Lt. Dillon and Dr. Farrar, and countless others before them, is whether we as a society are willing to continue to tolerate those drivers who willfully distract their attention away from the road.
(Research and drafting provided by Rick Bernardi, J.D.)
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 firstname.lastname@example.org 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 at www.bicyclelaw.com.
The information provided in the “Legally speaking” 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.