Posted by Jonathan Maus ( Publisher/Editor ) 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.