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Lawyer addresses problems, potential of tougher driver negligence laws

Posted by on November 14th, 2006 at 9:27 am

“Oregon needs a new law making it illegal to cause serious bodily injury or death to a bicyclist due to ordinary negligence.”
-Lawyer Ray Thomas

Lawyer Ray Thomas is working to add language to existing driver negligence laws to make it easier to charge motorists with serious crimes when they cause major injury or death to cyclists.

Thomas addresses this important issue in his latest column in Oregon Cycling magazine (not yet published). Spurred by a spate of fatalities in Washington County last summer where the driver was only prosecuted for a traffic violation, Thomas writes,

“Several high visibility accident and death cases in Oregon in the last several years in which the driver was merely cited for Careless Driving or a Failure to Yield have created the need for reform of the law. Oregon needs a new law making it illegal to cause serious bodily injury or death to a bicyclist due to ordinary negligence. Prosecutors would be more likely to charge this crime if it was easier to prove and less serious than the present crime of Criminally Negligent Homicide.”

The current law on the books says negligent driving occurs when a death is caused and the driver,

“Fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

The problem, according to Thomas, is that this “gross deviation” (also referred to as “gross negligence”) is much harder to prove than “regular negligence.”

“The additional requirement of a “gross deviation” creates a difficult burden for a prosecuting attorney before a jury in most death cases that involve merely thoughtless driving behavior such as drifting over the fog line, failing to yield right of way, turning left into the path of a bicyclist, or being momentarily distracted by a barking dog, cell phone conversation, or failing to properly gauge the distance between the motor vehicle and the bicyclist on the roadway.”

“This ‘injury goes with the territory’ attitude is paternalistic and anathema to bicyclists’ basic legal rights to a fair share of the roadway.”
-Lawyer Ray Thomas

Thomas writes that if prosecutors don’t feel they can sustain criminal convictions for careless or negligent driving, then there’s little chance that the prosecution will be initiated at all. I’ve also heard this problem echoed by frustrated police officers who wish they had more legal tools to use in these situations.

Thomas also addresses what he describes as the “unfortunate view” of some members of law enforcement that,

“because bicyclists place themselves in harm’s way by insisting on riding on roadways, it is foreseeable that there will be occasional catastrophic injuries and fatalities. This “injury goes with the territory” attitude is paternalistic and anathema to bicyclists’ basic legal rights to a fair share of the roadway.”

Seeking to make the laws more protective of the most vulnerable users of our roadways, Thomas wants to recognize this group and give them special protection under the law,

“Bicyclists, pedestrians, operators of open farm equipment, and motorcyclists usually sustain more serious injuries than the person in a motor vehicle who caused the collision…creation of a new label called “vulnerable roadway users” would create the opportunity for the bicycle community to partner with user groups for pedestrians, agricultural roadway users, motorcycle organizations, and equestrian groups to educate legislators about the need for law reform and greater protection.”

I like where Thomas is going with this. The laws that govern our roadways were written primarily for motor vehicles even though there are vast differences between the types of vehicles used.

From feet to bicycle tires, to Hummers and semis, it’s long overdue that our laws give more equitable consideration to these very different modes of travel.

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  • Brooks Cooper November 14, 2006 at 10:07 am

    I, like Ray am a lawyer and a bicyclist. I commute by bike 90% of the time (sometimes I have to drive to go to court in outlying counties with no good transit options).
    I could not disagree more with Ray’s idea.
    Don’t get me wrong. Drivers need to be more aware and the consequences for us on bikes of what would be a “fender bender” for two cars is often severe and life changing. I know that. However, criminalizing negligence – run of the mill inattention – which happens to everyone from time to time simply is a bad idea.
    Our criminal laws are designed to deal with gross deviations from the societal norm. Our civil laws deal with lesser problems such as negligence.
    To make it a CRIME to have a moment of inattention is simply a bad idea no matter how much it seems justifiable in some situations.
    I know that in the times I’ve been hit the driver was just not paying attention. They should be made to pay for my medical bills, lost wages, etc. That lack of attention however should not result in the possibility of incarceration or other criminal penalties.
    I applaud Ray’s advocacy for our issues but in this instance he’s wrong.
    Brooks Cooper

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  • Brad November 14, 2006 at 10:59 am

    I certainly hope this has legs and gets through the next session of the legislature. It is long overdue.

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  • JE November 14, 2006 at 11:06 am

    I thought that killing someone would already be illegal in Oregon. Guess not.

    1) “Fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists.” Slamming into a human body at 30+mph with 3,000lbs of metal already qualifies. When I pass by a cyclist or pedestrian in my truck, I slow down and give them room. I understand the simple physics involved. I guess prosecutors don’t or simply don’t care.

    2)The unfortunate view of some members of law enforcement. “because bicyclists place themselves in harm’s way by insisting on riding on roadways, it is foreseeable that there will be occasional catastrophic injuries and fatalities.” Police officers also place themselves in harm’s way. So shouldn’t assaulting or murdering an officer in the line of duty be overlooked as well? (Was it Thomas’ and Colleen’s own fault that they died, PPB???)

    Point blank, there is no excuse for this. No excuse for the cops or prosecutors. A person is dead and another killed them, PERIOD. In the civilized world, that’s called homicide and it’s a crime. In Oregon, it’s a traffic ticket.

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  • ridealot November 14, 2006 at 1:15 pm

    This will do nothing to make roads safer.

    This whole notion acceptable level of ‘ordinary negligence’ is stupid. Enforcement must be done proactively not retroactivly.

    The way I read the propsal, is that you need to have already killed somebody to trigger the law. Does nothing for the poor soul who was killed.

    How bout actaully making the roads safer for everybody. Reduce all transportation casulties. Enforce the laws we have. Apply some reasonable speedlimits. Make a law forbidding vehicles to pass within 3 feet of a bicycle/pedestrian. And most importantly, shove the cell phone where the sun don’t shine. I make these proposals as a driver and as cyclist.

    Make simple enforcable laws. Then use them.

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  • Gregg November 14, 2006 at 1:28 pm

    Brooks, I understand your point. I have had a moment of “non”-clarity and driven off the road in my car, ending up in a pond. Otherwise, I’ve been incident free my whole life. But I don’t understand how civil laws would adequately address the issue. Does that mean that a person who was injured (or a relative if they’re dead) can sue for damages? It seems like that would put the burden of proof on the victim. And how many civil law violations (or deaths) does it take to pull somebody’s license?

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  • Brooks Cooper November 14, 2006 at 1:38 pm

    Response to Gregg –

    1) Yes, an injured person may sue for damages. If the person is killed their family can bring a wrongful death suit. Note – the focus in civil actions is compensation of the injured, not punishment of the bad driver.
    2) “burden of proof” – in a criminal case the State bears the burden of proving beyond a reasonable doubt that the defendant committed the crime. In a civil case the injured person bears the burden of proving – by a preponderance of the evidence [a much lower standard] that the driver was negligent and that the injured person was harmed. So, yes this does put the burden on “the victim” but the burden is never on the driver to prove they “didn’t do it.”
    3) No amount of civil judgments entered against someone will ever cause “automatic” loss of license. DMV rules are very restricted as to when and why a license can be revoked. Though driving is a privilege, not a right, our society is structured to make it easy to get and hard to lose permission to legally drive an automobile.

    Hope that clears some things up.

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  • revphil November 14, 2006 at 3:27 pm

    So there is the stick and the carrot, this is the stick.

    Might this work like the drunk driving campaign? I believe that changed driver’s behavior. It made me not drive drunk, at least.

    Presently if you are driving drunk, and kill someone the law encourages you to run. Better to leave the body to die than try and save them.

    Bjorn, can you back me up on this? where is that article from corvallis?

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  • jami November 14, 2006 at 4:11 pm

    i’m all for a law that will actually get used. juries have shown time and again that they’re all-too-willing to let homicidal drivers off with a $242 ticket under current laws. there should be a law that makes gabbing on your cell phone, changing cds, and eating a chicken wing while the sun’s in your eyes and you’re going 58 mph in an suv worse than jaywalking, but not exactly the same as getting heffed up on goofballs and hitting the road.

    but the law should be carefully written, as others have pointed out. someone i know impressed me back in her teen years when she flipped over a pickup truck, harming no one. she fled the scene. it was only years later that i realized she was probably drunk, but not too drunk to make the smart decision (legally speaking) to flee, sober up, and face the music with better breath.

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  • Brad November 14, 2006 at 4:18 pm

    Ridealot,

    It does nothing for the dead guy but the fact you will go to PMITA prison and the “sun got in my eyes” defense no longer works gets drivers to be more careful and considerate. After a couple of “show trials” where the local media reports that 19 year old street racer or cell phone yakking housefrau gets carted off for 5-7 years will make drivers think.

    Speed limits already exist and are not working. The “3 Foot Rule” is flawed and easily defeated in court. Pragmatically, who is going to do this enforcement? If the police are not enforcing speed limits consistently, what makes you think they will be looking for 36″ of clearance? Will bikes then have to give peds and parked vehicles three feet as well? Seems fair but I imagine the messengers would be cited out of business.

    We are talking about fatalities. No one is proposing that drivers get imprisoned for minor bumps that “taco” your nice new Rolfs or cause you some minor road rash.

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  • Garlynn November 14, 2006 at 5:17 pm

    …this might be slightly off-topic, but the EU is going to require new rear-view mirrors on trucks that allow them to see bicyclists & pedestrians that are immediately adjacent to the vehicle. This is supposed to prevent truck vs. bike-ped injuries.

    See the article here:

    http://www.hs.fi/english/article/Millions+of+rear-view+mirrors+to+be+changed+in+EU+trucks/1135222955064

    I wonder if Oregon could enact similar legislation, or if this is a strictly federal matter?

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  • Martha November 14, 2006 at 7:42 pm

    The more tools for encouraging and enforcing good driving, the better. Our culture accepts bad driving — driving while distracted, while tipsy, while occupied by other tasks, while angry or while impatient. The common attitude is, “We’ve all done that at least once in our past, so it would be bad to single out the guy whose lapse actually killed someone.”

    Ray Thomas’ work is one small step towards changing our culture’s attitude. The laws he’s working to create send the message that it’s NOT okay to distract oneself while driving. It’s not okay to be careless behind the wheel. I want to live in a society that values human life. I applaud Mr. Thomas for his role in bringing us one small step closer to this ideal.

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  • Dave November 14, 2006 at 10:47 pm

    I like Ray’s idea on ordinary negligence, but I don’t agree with creating a new “class” of roadway users. Other divers may be less likely to be injured or killed by a negligent driver, but if they are the driver is just as responsible as if he/she hit a cyclist or pedestrian.

    I’m not a lawyer, but I always liked the idea of making commission of a moving violation (speeding, unsafe lane usage, etc.) that leads to injury or death of another de facto proof of intent to commit harm. This would seem to get around the problem of proving intent.

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  • Kristen November 15, 2006 at 11:14 am

    JE said, “When I pass by a cyclist or pedestrian in my truck, I slow down and give them room. I understand the simple physics involved. I guess prosecutors don’t or simply don’t care.”

    I think that the problem is that while you and I and a small (very small!) segment of the population slow down and give room to other road users (you don’t tailgate do you?), 99% of the rest of the road users don’t. So either they don’t know or they don’t care about the simple physics involved in driving their multi-ton motor vehicles.

    And yes, this will include prosecutors, and judges, and defendants, and other bicycle riders, and pedestrians, and….. you see where this is going.

    So does the driving population need to be educated on the simple physics involved? Yes! And does this include us on bikes who ride on roads? Yes! And pedestrians? Yes!

    It seems like, as long as people are going to “get away with” excuses like, “the sun was in my eyes” or “they came out of nowhere” (everyone comes from SOMEwhere), then yes, we need the Ray Thomas’s of the state to push for laws that protect us from the inattentive, the selfish, the impatient, etc. Because we obviously can’t do it ourselves without being branded as rogues, scofflaws or psycho arrogant fanatic bike riders trying to bring down the whole infrastructure of society. I’m exaggerating, here, but you get the point.

    And until (I cringe to say it) an example is made of someone who kills another road user on a bicycle, I can’t see it getting any better.

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  • Bjorn November 15, 2006 at 12:48 pm

    On August 10th 2004 a recent high school graduate and local swimming pool life guard was killed in corvallis while commuting home from work by Amy Stack. After the collision Stack left the scene, another driver who was driving the opposite direction saw the accident in their rear view mirror and went back to help Robin, or she might not have been found for several hours. Stack left her victim in a ditch to die, and later said that she thought she had hit an animal.

    Why did she run? Well she had a previous DUI that she had done diversion for, and empty liquor bottles were found at her residence. I think it is fair to assume that there is a good chance that she ran from the scene because she was drunk at the time of the accident.

    She is currently serving 18 months in jail, the sentence if she had been caught and found to be drunk would have been 10 years. Our current laws encourage any person who is intoxicated and hits someone to run from the scene. Robin’s death was not likely a result of delayed treatment because another motorist stopped right away, but not stopping in a case like this is in my opinion is amongst the most inhumane act a motorist can commit.

    Incidentally the prosecutions case included evidence that Stack went home after the accident, parked in the garage, ordered some pizza and bread sticks, then proceeded to drip marinara sauce on the car while inspecting the damage. The windshield had human hair on it.

    Amy Stack will be back on the roads in about 6 months, look out.

    Bjorn

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  • Bjorn November 15, 2006 at 1:09 pm

    I don’t think that the 3 foot rule is really something that I expect to see cops out enforcing with a yard stick, however right now when someone tries to go by at about 6 inches and clips a cyclist with their mirror they can claim it was an accident. If the law says 3 feet then when someone is clipped by a mirror it eliminates the oops I thought I had room defense.

    Bjorn

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  • revphil November 15, 2006 at 1:37 pm

    thanks bjorn!

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  • organic brian November 16, 2006 at 9:09 am

    Brooks, it appears that you don’t think there is anything wrong with “negligence – run of the mill inattention – which happens to everyone”… it does NOT happen to everyone. If you are UNABLE to devote full attention to where you’re going while driving an automobile, you should not be behind the wheel. Plain and simple.

    As for criminalization of driver-caused deaths doing nothing for the victim, that may be but the point is to get drivers to view driving with the same amount of seriousness as any potentially dealdly activity. If a person causes a death of another using a firearm in Oregon, certainly there would be an investigation and they may be charged with a crime whether or not they intended to kill the person. Automobiles are just as deadly as firearms, in fact more so considering the unlikelihood of one shot from a gun killing multiple people.

    Addressing the idea that criminalization would cause motorists to flee the scene after causing a fatality: they don’t do this now?

    How about those who don’t think dangerous driving should be criminalized make suggestions for other ways that drivers can be encouraged to be more fully present in their activity? I don’t think any of us would dispute that average motorist’s attitude towards driving safety is ridiculously casual.

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  • Jo Routens November 16, 2006 at 9:14 am

    Why, for instance, do arsonists whose crimes cause deaths sometimes get charged with murder–not negligent homicide, not manslaughter, but murder–but, for another example, “career” DUI’s always get the lighter charge. Maybe it is time to think in terms of motorists existing in a temporarily less than human state when driving, or at least when driving impaired. I drive (too much sometimes) but have been a cyclist longer than a driver, and it’s been a long damned time since I’ve been able to see motor vehicle operators as equally human to human-powered people.

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  • Gregg November 16, 2006 at 10:27 am

    Brooks, thanks for your response. I do understand some of your points. Unfortunately, the societal norm is that the automobile is some sort or private hideaway where all responsibilities of a human towards others are washed away (queue Gary Numan track now) and that needs to change.

    I think that if airbags and seat belts were removed from all cars, we would see much safer drivers.

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  • tonyt November 16, 2006 at 11:06 am

    There was an article that I read years ago where an anthropologist compared two villages/tribes in Africa. In one tribe, unintended fires were considered accidents. In the other tribe, unintended fires were considered a source of great shame.

    The tribe that considered them accidents had a fire rate approximately twice that of the “shame” tribe. Go figure.

    There are very few “accidents.” Someone is either speeding, inattentive, or negligent, etc. This stuff does not just happen.

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