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Would 'strict liability' help curb America's distracted driving habit?

Posted by Jonathan Maus (Publisher/Editor) on November 9th, 2010 at 4:05 pm

If marketing campaigns and PSAs don't curb distracted driving and we lack the resources to enforce laws, how will we ever learn that driving a multi-ton vehicle on a road shared with people walking and biking is an extremely serious responsibility?

As we struggle to figure out why an "alarming" amount of people are being killed while walking on our roads here in Oregon, and we mourn the death of a 23 month old who was hit while crossing a North Portland street yesterday (was being pushed in a stroller), I want to share the concept of "strict liability" that is current practice in the Netherlands.

Earlier today, a local activist shared a short video (published by IPayRoadTax.com, a UK campaign) about the concept .

Hans Voerknecht
(Photo © J. Maus)

The video features the voice of Hans Voerknecht, the International Coordinator for Netherlands-based Fietsberaad (you might remember Mr. Voerknecht from his Portland visit in October 2009).

Here's the transcript from the video of Mr. Voerknecht explaining how their system works in the Netherlands (please excuse his English):

"When an accident happens in general the car driver is liable; and even when the car driver would say, 'Yeah but the bicyclist made a very strange movement and I couldn't do anything about it,' then the judge would say, 'Well, you could see the bicyclist and you know that this happens with bicyclists and you should reduce your speed in a situation where there are bicyclists, so still you are at fault'.

So only in a situation when a car driver for instance would stay still and the bike would ram into the side of the car, then of course the car driver isn't liable; but in a sense we say in the Netherlands, car drivers should be aware of the situation that they are in a machine that can kill and that they should behave responsibly for that situation."

Watch the video below:

Outlandish? Crazy? I'm sure that's how many in America will first react to this concept. But is it any crazier than the current state of traffic culture in this country? Where people put on makeup and text their friends while driving and don't seem to have any idea what the results of their inattention might mean to themselves and those around them?

Strict liability might also help shift the emphasis of crash prevention away from admonishing road users for not wearing bright enough clothing and toward the people operating the most dangerous vehicles. (Note: Strict liability is something that is applied as a civil measure for insurance liability purposes, not as a criminal culpability measure.)

What do you think?

Learn more about strict liability on the website of CTC, the U.K.'s National Cyclists Organization (they support the concept and are working to make it law).

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Comments
  • Steven Vance November 9, 2010 at 4:10 pm

    Hans told the ThinkBike Chicago audience in September 2010 about strict liability.
    http://www.stevevance.net/planning/thinkbike-the-opening-ceremony/

    He also said that the driver would be 100% responsible in collisions with minors, and at least 50% responsible in collisions with non-minors.

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  • lisa November 9, 2010 at 4:18 pm

    I like this strict liability.
    If you're going too fast to stop before you hit a person walking or a person on a bike or anything, then you're going too fast. And you are responsible.

    The operator of the killing machine is always guilty until proven innocent.

    And I'm still fuming over the insufficiently brightly clad claim, and the comment on this Oregonian story that the real problem is over emphasis on pedestrian right away.

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  • 9watts November 9, 2010 at 4:36 pm

    Sounds very good. Let's demand it.
    Oh and while we're at it, what is up with the airbags? They do nothing for anyone outside the car, in the path of the car, but rather suggest to those inside, however subtly, that they'll be fine in a crash. I think a tamper-proof six inch spike in the middle of the steering wheel instead would be a great physical analogue to the strict liability concept in law.

    Maybe if we propose both and in the ensuing furor settle for the one Mr. Voerknecht describes it would stand more of a chance? Just a thought.

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  • Val November 9, 2010 at 4:40 pm

    Yep. Makes perfect sense to me. Where do I vote for it?

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  • kj November 9, 2010 at 4:49 pm

    Lisa- word.
    I made a huge mistake reading the Oregonian comments on that story.

    I am all for strict liability. There are no consequences in this country for driving and hitting/injuring/killing people (walking biking OR driving) dire enough to keep people from accepting the responsibility of operating a car safely.

    everything after this is a rant, feel free to skim on by:

    I do not understand this culture of people who are not car drivers being at fault because the car drivers 'can't see' them. Why can't people just slow down and pay attention? If you can't see where you are going to are going to fast for the conditions you are traveling in. It's true for me at night on my bike, and it's true when I am in a car. And I do know how hard other cyclists and peds can be.

    I manage to avoid hitting 'invisible people'...because I am looking for them...you look for people who are not particularity visible and you can indeed see them..if you are paying attention to your surroundings. It's a lame duck excuse that absolves people of liability and puts it on the victims. It's not like people go around intentional trying to be invisible and get hit by cars but that's how many victims are painted.

    Heck I could have been hit last week as a ped in a crosswalk IN reflective rain gear by a diver driving too fast and not paying attention to the conditions( dark and rainy) and her surroundings (busy ped street, Alberta) She was so flustered at not being able to see where she was going she was also honking at everyone in her way..instead of slowing down...or better yet pulling over until she calmed the f-k down. (I was half way through the intersection when I realized she did not see me, I stayed in front of the car who had stopped for me.) and don't get me started on Killingsworth and 30th.

    sorry for the tl;dr.

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  • 9watts November 9, 2010 at 4:54 pm

    I'd be curious to know how Dutch law handles a situation, say, in which someone who is inebriated and wearing dark clothing stumbles into the roadway at night and is hit by a car/motorist (who we could imagine was doing everything right, except not driving altogether). I mean there are situations like this one in which we as drivers would not feel like we did anything wrong, that the circumstances were just really crummy. Someone was bound to bring up something like this and perhaps we can just get it out of the way early on?

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  • Todd Boulanger November 9, 2010 at 5:04 pm

    My personal experience as a pedestrian, passenger and bicyclist with the roadways managed by strict liability is a very positive one. Vehicle operators are more often [than here] more cautious around other road users - other drivers too. This is the basis of true defensive driving...a behaviour that our more modern 'no fault' system has minimized.

    In my conversations with Dutch and Americian drivers...there seems to be more concern and complaints with our system and our driver's abilities (or inabilities) by ourselves.

    And it is also reflected in how the safety equipment in many of our cars are kept up [and enforced]...you rarely see Dutch cars moving on the road with broken or inoperable lamps, cracked windshields, hoods and doors tied with rope, missing mufflers and other body parts.

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  • Red Five November 9, 2010 at 5:05 pm

    Let's get the BikePortland lynch mob ready!

    Red Five: I initially deleted this comment and the responses it caused, but then I re-instated it because I want to capture your feelings. I have tried emailing you directly (no response) to let you know that I do not like the tone and style of many of your comments (which I why I delete so many of them). I want you to share your opinions, and I value the full spectrum of perspectives, but please keep in mind that these comments are very important to me and I want them to be as productive as possible. Thanks. -Jonathan Maus

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  • 9watts November 9, 2010 at 5:09 pm

    so helpful, Red Five.
    Let's not lose sight of who is dying here every day.

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  • lisa November 9, 2010 at 5:19 pm

    Red Five perfectly embodies the attitude towards the seemingly daily occurrence of people being mowed down by cars.

    It's acceptable collateral damage, let's make fun of people who object to it.

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  • wsbob November 9, 2010 at 5:22 pm

    From the UTC (U.K.'s National Cyclists Organization)

    "... The law on driver insurance schemes should therefore be amended so that non-motorised road users will be able to claim injury damages from drivers who hit them, unless it can be shown that the non-motorised road user behaved recklessly .... .... In deciding whether a person has acted recklessly, their mental and physical characterisitics should be taken into account, so that groups such as children, people with learning difficulties and disabled people who may not have appreciated the outcomes of their actions would be able to claim damages. ..." UTC (U.K.'s National Cyclists Organization)

    Taking the example of drivers that are driving responsibly, (not fiddling with any number of distractions inside and outside of their vehicle, as some drivers are inclined to do), who yet find themselves in the unfortunate circumstance of colliding with a vulnerable user that hasn't acted responsibly, how are such drivers going to be able to prove the road user acted recklessly?

    Often in road collisions, there aren't witnesses, or at least...reliable witnesses. Also, downtown Portland for example, there seems to be plenty of vulnerable road users not traveling by motor vehicle, that by all appearances and actions, do not outwardly appear not to be disabled, but who then will spontaneously engage in some erratic movement. Are said drivers to be held responsible for colliding with these road users when they do something like this?

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  • wsbob November 9, 2010 at 5:25 pm

    correction:

    "...do not outwardly appear to be disabled, but who then will spontaneously engage in some erratic movement. ..."

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  • jim November 9, 2010 at 5:25 pm

    Is this the same place where if you end up in court for something you are guilty untill you can prove you are innocent? The opposite of our system.

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  • andy November 9, 2010 at 5:28 pm

    An interesting idea I learned while in Germany (and I don't know if this is true elsewhere in Europe) is that at any intersection, a vehicle approaching from the right has the right of way. Therefore you can't just drive straight through an intersection and assume that you have the right of way - you need to slow and look to make sure another vehicle (or pedestrian, or bike) isn't approaching.

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  • are November 9, 2010 at 5:31 pm

    that's right, jim, we are talking about criminal liability here, with jail and stuff. not.

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  • Psyfalcon November 9, 2010 at 5:40 pm

    jim (14) yes, but it could apply, similarly how the airport searches apply. It could be unconstitutional for most other actions, but, because driving is a privilege, and you are not forced to drive, the same standards do not apply. Another example is the testing requirements if you are suspected of dui.

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  • Joe November 9, 2010 at 5:50 pm

    Ive had ppl just look at me and my girls on the road like I shouldnt be out there with them, sorry old fokes need lic ripped away at 60/sooner. ppl in the US have no clue on other modes of transport.
    R.I.P lil guy..

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  • Brent November 9, 2010 at 6:12 pm

    I believe strict liability in Dutch law dictates whose insurance will pay -- not whether there is criminal culpability. It may be a subtle point, but it's critical to understanding the reach of the provisions.

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  • Hazel November 9, 2010 at 6:25 pm

    There are similar laws in Japan as there are in the Netherlands. I have cycled in both places and felt so much safer on the road. Almost ever time I have had a close call with a vehicle here, the driver will say "I didn't see you" which really means they were not paying enough attention to the road. I wish it didn't take laws to make people more accountable for their own actions but that seems to be the way things work.

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  • Opus the Poet November 9, 2010 at 6:37 pm

    As others have said many times, it's way too easy to get a driver's license in the US and way too hard to have one taken away. There is not enough education about where and how to ride a bike or even walk, and way too much assumption that drivers have some kind of "right" to the roads because they have a license and pay car taxes.

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  • Red Five November 9, 2010 at 6:51 pm

    The problem is in the U.S. we don't teach people how to actually drive, just to read signs. A country of sign readers, and not very good ones at that.

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  • CaptainKarma November 9, 2010 at 7:44 pm

    Hell Yes. The time has come.

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  • Ron November 9, 2010 at 7:52 pm

    Howdy--

    All a driver needs to say is "I didn't see him," and the police will say, "We understand, he wasn't wearing neon colors. We hope this incident hasn't traumatized you too much."

    Drivers need to be held to a strict standard--hit anything, lose your license. I have a feeling they'd suddenly start seeing cyclists.

    Happy Trails,
    Ron Georg

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  • lynn November 9, 2010 at 8:49 pm

    This is the second occurrence of this type in less than two months. I hope Elders for Action and AARP get on subject SOON.

    My heart goes out the parents.

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  • aaronf November 9, 2010 at 9:46 pm

    I think there is room for improvement on both sides.

    I was driving on Hawthorne on Sunday night and had an oncoming cyclist without any lights make a left turn right in front of me. If I hadn't seen her I guess that would have been my fault, and not hers?

    The way I see it, at the very least she should not have assumed I would see her. If I was doing the ninja bicycle thing I wouldn't just pull out in front of someone and hope they could see me.

    Share the road. Share responsibility?

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  • wsbob November 9, 2010 at 9:49 pm

    "...There is not enough education about where and how to ride a bike ..." Opus #21

    Which is one of the fundamental caveats associated with the idea of 'Strict Liability'. Observation of many cyclists operation of their bikes on the street sends the message to all road users that somehow, too many people riding bikes don't have sufficient education or incentive (hard to know exactly) to observe and comply with traffic regulations and road use procedures that would prevent them from being a threat to responsible road users.

    Would implementation of 'Strict Liability' somehow encourage, influence or compel non-motor vehicle operators, such as people that ride bike for transportation...to better educate and train themselves to comply with traffic regulations and road use procedures for bikes in traffic?

    Despite the incidence of incompetent, irresponsible motor vehicle operators on the road, not enough recognition is given the overwhelming majority of motor vehicle operators on the road that are very skilled and competent in the operation of their vehicles. Their support for the principle of 'Strict Liability' is essential if there's any hope for it to be implemented into law here in Oregon.

    "... The problem is in the U.S. we don't teach people how to actually drive, just to read signs. ..." Red Five #22

    I wonder who Red Five is implying in his use of 'we'. Ah-h-h...maybe he's joking. At any rate, maybe there's some truth to what he says. Some American high schools do give their students the option of a driver's ed course, but it's not accorded the same educational priority as, say, reading or writing, even though for many people, driving is quite an essential skill requirement to, for example, work a job.

    Actually though, it's not true that American citizens aren't taught to drive. Not all of them, but many are carefully taught to drive over a lengthy period of time (had my learner's permit for a year...under the instruction of my parents...often not fun for either of us). It's usually a family/friend type of education, so the quality of education would probably be more comparable to home schooling (which many people find superior to public education) than to public schooling.

    If people want to seriously propose a law based on 'Strict Liability', have proposals coincide with, or even be coupled with, efforts to elevate the competency of all road users whether they be traveling the roads by motor vehicle, bicycle, or on foot.

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  • whyat November 9, 2010 at 10:16 pm

    This summer I had a cyclist blow through a stop sign and cut across two lanes of traffic to land right in front of my car. I slammed on the brakes and avoided hitting him. However, if he had done this two seconds later I would have hit him and IT WOULD NOT have been my fault (and my speed was irrelevant, though for the record I was going about 20mph). I am all for prosecuting reckless drivers. However, in PDX there sure are a lot of a## hats who have no respect for any other vehicles on the roads (both cyclists and drivers- I got hit by a car who cut in front of me this October so I speak from experience). My expectation when there is any accident is that all facts will be looked at and considered, and that I won't automatically be considered a criminal because I happened to be in my car that day. When it comes to our legal system blanket sentencing and concepts like strict liability are never the answer.

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  • Joe Rowe November 9, 2010 at 10:53 pm

    It's beyond depressing to think about a car plowing down and killing a baby in a stroller.

    Strict Liability would never fly in the USA, and we don't need it to show this driver was liable for the baby's death. Shame on the family and friends of the old guy for letting him drive. It was no accident.

    Let's think realistic. I'm wondering if the BTA is going to meet with some of the local judges on the issue of law reform and car drivers getting off easy after harming a victim. I sent the BTA ex. director an email on this, he's too busy to reply I guess. I got one of the judges to agree to a meeting, but the BTA has let that slip.

    Go ahead, add a comment here, but also call the BTA. They claim to want the leadership role on a lot of bike issues.

    (503) 226-0676

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  • Joe Rowe November 9, 2010 at 10:55 pm

    Friends don't let impaired friends drive. Period. Drunk or too old to react, same risk. It's a topic we've ignored too long.

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  • jim November 9, 2010 at 11:06 pm

    Joe-
    It'sdd you mention that when there is a picture of a "Bar Bike" at the top of the article. What happened to "friends don't let friends ride drunk"

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  • 9watts November 9, 2010 at 11:06 pm

    "Drunk or too old to react, same risk..."...or distracted, or inexperienced for that matter.

    While folks need to take care of themselves a bit (more), the issue that sparked this conversation appears to many to be a huge hole in our legal system that exempts automobilists who injure or kill others while driving from the kinds of repercussions most other groups face.

    We can talk all we want about reflective clothing and checking text messages while driving, but until the repercussions for killing or maiming others with a car are brought up to prevailing legal standards in this country, not to mention how some other countries classify death by car, I think we're missing the real show.

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  • Ena November 10, 2010 at 2:34 am

    One night I turned onto a one way street at about 9pm, the road near the rose garden. There was a bike veering all over several lanes in the opposite (wrong) direction with headphones on. He obviously cared not to recognize the traffic that may be coming his way. I was only going about 20 mph when I nearly hit him. Luckily, things were alright.

    I like this strict liability idea, but not when I'm following laws and someone else's behavior is totally irresponsible. It would have been totally unfair for me to be punished for someone whose behavior was as totally ridiculous as this persons.

    I still think cyclist (like myself) need to be required to wear lights to assist in being seen.

    Responsibility needs to go all around.

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  • bb November 10, 2010 at 6:39 am

    Something needs to be addressed. Autogenicide is happening right now.

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  • drew November 10, 2010 at 7:04 am

    Would be nice, I can't see a law like that happening in the car-culture of this country any time soon. Drivers would much rather avoid responsibility for smashing into people.

    How would that concept be sold to a public that thinks driving is a right, and their gas tax paid for their road? If those notions would be refuted in the media that would be a step in the right direction. It's the biggest news you won't see in the Oregonian.

    A co worker was shaking with anger once telling me how bicycles are so dangerous. Yes, it is hard to keep going 55mph and miss hitting someone on a narrow road with traffic coming in the other direction. I suggested she could slow down and pass safely, but I may as well have been talking to a boulder.

    Meanwhile, looking like a Christmas tree increases the chance of survival out there.

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  • Ron November 10, 2010 at 7:25 am

    Howdy--

    As the Dutchman noted, there would still be extenuating circumstances for drivers. Strict liability wouldn't relieve cyclists of their responsibilities. Wrong-way riders, riders without lights, etc., wouldn't be protected.
    However, we could finally reach a point where there are no accidents. Failing to see a rider using the road properly would no longer be an acceptable excuse for mowing that rider down.
    Happy Trails,
    Ron

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  • Tacoma November 10, 2010 at 7:41 am

    "...not enough recognition is given the overwhelming majority of motor vehicle operators on the road that are very skilled and competent in the operation of their vehicles. Their support for the principle of 'Strict Liability' is essential if there's any hope for it to be implemented into law here in Oregon." wsbob #27

    A key point, wsbob. Only with their support can this to be implemented.

    "However, if he had done this two seconds later I would have hit him and IT WOULD NOT have been my fault (and my speed was irrelevant, though for the record I was going about 20mph)." whyat #28

    Yes, his move was stupid but maybe your speed was relevant and allowed him the two seconds that kept him from serious injury. In this case, your good behavior was able to overcome his bad behavior. Well done.

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  • malka November 10, 2010 at 8:01 am

    I definitely see the merit in "strict liability." As others have commented, the automobile culture in our country is out of control. How many people had to die as a result of drunk driving before the laws got tougher? The predominant mindset, that of individualism and rights over responsibility, has to change. Driving cannot be regarded as a secondary activity to anything other than breathing.

    At the same time, cyclists share some responsibility for their own safety and the safety of others. Since I started cycling at night I am probably more concerned about being struck by another cyclist (the ones who are not only invisible but ride through intersections as if they are the only ones on the road) than by a motorist.

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  • spare_wheel November 10, 2010 at 8:13 am

    @ena
    driving a car is like firing a gun. don't point it at a human being and you won't kill or maim (sober and allegedly drunk) human beings.

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  • jim November 10, 2010 at 8:39 am

    I came very close to dooring a bike last night. He didn't have a headlight, it was a dark area (under trees) and he had dark clothing. I saw him at the last moment and closed my door. I shouldn't have to defend myself for someone else's stupidity, he should have to defend himself for not having a light.

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  • Opus the Poet November 10, 2010 at 9:16 am

    OK what all you people reciting stories about ninja cyclists fail to recognise is that under a strict liability law ninja cyclists are acting at their own risk, the law does not cover their butts when riding at night unlit. Bike Ninjas are a red herring in this conversation.

    What is getting lost is that last year was the best year in over a decade for cyclist and pedestrian deaths, and cars still managed to kill almost 5000 people in this country who were not even inside a car. In total we had between 10 and 11 9/11 tragedies (almost 34,000 people killed) and people are celebrating because the number was the lowest it had been in 60 years! This is the kind of entrenched Car-biased thinking we have to deal with.

    A strict liability law combined with better education about cyclist's and pedestrian's rights and responsibilities will go very far in reducing the carnage on our streets and roads.

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  • Ely November 10, 2010 at 9:39 am

    if you handle a deadly weapon you are responsible for the consequences.

    if you're trotting through downtown with a loaded gun, which goes off when someone carelessly bumps you - it's still your fault.
    same should be true of cars. You are the killer; you need to be responsible for that. If that makes it hard for you to drive - scared of bike ninjas? - so much the better; get off the road.

    with great power comes great responsibility.

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  • k. November 10, 2010 at 9:39 am

    The idea of "strict liability" can of course have limits and those limits can be defined. We don't have to go overboard with them, but by all means they should probably be adjusted to something more than they are now. There's also the politics, which can't be ignored. We're living in a time of raging lunatic Tea Party'ers who will see any such attempt as a power grab by the "nanny state" government.

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  • jim November 10, 2010 at 9:40 am

    I don't want a judge to say I should have anticipated a ninja being in the dark, or his unusual movement should have been anticipated, this attitude is going way too far to the left

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  • aaronf November 10, 2010 at 9:40 am

    What happens if we extend this "mass = guilt" system?

    Semi trucks are killing machines on the highway. The drivers are professionals and already held to a higher standard as far as fitness, training, responsibility for maintaining equipment, etc.

    Should all collisions involving a semi automatically default to blaming the semi driver because their vehicle weighs 25x more, and is capable of killing dozens of people in a single accident?

    What about motorcycles? We know they can be unpredictable. If a motorcycle cuts you off and then brakes is it your fault because you should expect them to drive like jerks?

    Or should shared responsibility end as soon as you hop onto a bicycle? If so, why?

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  • aaronf November 10, 2010 at 9:47 am

    Ely, if you keep bumping into guns you will eventually probably get shot, and while you can blame the gun (or I guess your family could) you will still be dead, so it won't do much good. Even sending the driver to jail forever wouldn't bring you back!

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  • Tacoma November 10, 2010 at 9:56 am

    Not to gush, Opus (#40) but well stated. I hope the people that post will pay attention to your timely comment about ninja cyclists. Your middle paragraph is your best point though I despair that anything can/will be done but thankfully someone continues to speak up.

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  • Opus the Poet November 10, 2010 at 10:18 am

    Awww Tacoma you're going to make me blush!

    Aaronf #46

    If you don't protect your firearm from people bumping into it you lose your CHL in TX. We recognize that guns can kill if not taken care of, what we are trying to do is get people to recognize that cars are as or more dangerous than guns. Even here in gun-happy TX more people die from motor vehicles than from gunshots, but nobody seems to take notice. I have been conversing with my state rep about the subject for almost a decade now and I think I'm starting to get through on the subject, since he's an insurance salesman and has access to the data. This is a guy that can see the data, has experience with the carnage a motor vehicle can do on a regular basis in his business, can see my scars (the ones I show in public), and it still took over 8 years to convince him that we should be Doing Something about the people that drive motor vehicles and kill or maim other people.

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  • bruce November 10, 2010 at 10:20 am

    I have always believed that driving a car in strict adherence to the law (ie: full stops, pedestrian right of way at cross walks & intersections and speed limits) is much less convenient than it seems. The strict liability concept would add significantly to inconvenience for automobiles. In my mind this leads inevitably to alternative forms of transport and then less traffic. We all win.

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  • Katie M. November 10, 2010 at 10:24 am

    Here in LA we're debating the same issues following a spate of pedestrian deaths. One thing to keep in mind is the difference between "liability" and "penalty."

    For example, in California there is strict liability for dog owners whose animal harms another person, but that doesn't necessarily lead to a harsh penalty--the crime is classified as a misdemeanor. So when we're talking about increasing punishments for drivers who hurt or kill bikers and pedestrians, we need to look at both culpability and penalty.

    I was under the impression that Oregon had a vulnerable users law that had stiffer penalties for drivers who hurt peds or bikes. Is it not working?

    Katie
    http://www.wherethesidewalkstarts.blogspot.com

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  • scott November 10, 2010 at 12:00 pm

    It's the right thing to do, because it affirms the correct distribution of responsibilities. But I'd be surprised if it results in an actual reduction in collisions/injuries/deaths.

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  • Todd November 10, 2010 at 12:05 pm

    I think toughening laws for drivers should be one of our top 3 goals to making use of our public roads more equitable and to convince more people to ride and walk.

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  • Roland November 10, 2010 at 12:53 pm

    To me this isn't crazy or outlandish; it's fricking OBVIOUS. But there are a lot of obvious things that aren't done in America.

    When I used to drive a cab I had an experience that pretty much solidified my opinions on this. I had a minor fender-bender in the cab because I was "driving distracted," poking the buttons on my mobile dispatch unit instead of watching the road. The cab company's insurance pays for all the damage in those cases, but meanwhile the driver has to go before a review board to determine whether disciplinary action (fines, suspension) are called for. In that meeting they asked me a bunch of questions, ending with this rhetorical one: "Is there ANY situation where the driver of a vehicle isn't responsible for knowing what is in the path of the vehicle?" Couldn't think of any. Which was their point precisely: there are none. And I was fined several hundred dollars. Lesson learned. But obviously that cab company's internal review process is (I never thought I'd say this) more just than the law.

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  • slowneasy November 10, 2010 at 1:12 pm

    I'm glad we are talking about distracted drivers because what happened to me this morning is indicative of what some people are doing out there. You can see the whole story in Forums/General Discussions/Cornelius Pass Road #83

    We have all seen stupid behavior and in my 3 years of professional driving this takes the cake so far.

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  • Kt November 10, 2010 at 1:25 pm

    I like the idea of strict liability. To make it fly with the competent drivers out there, and to the "I pay gas tax ergo I own the road" crowd, make it across the board.

    Apply it to all road users, not just to interactions between motorized and non-motorized. It's less polarizing that way.

    While we're at it, make the punishment fit the crime.

    And yes, the elderly need to be monitored a lot more closely as drivers-- I'm talking yearly physicals, retaking the written and driving test every year, doctor's note.

    We treat the under 18 crowd differently than the over 18 crowd when it comes to driver's licenses why not the over 65 crowd?

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  • Brad November 10, 2010 at 1:45 pm

    Strict liability will become law once you can get buy off from two very minor opponents: the insurance lobby and the trial lawyers.

    The insurance lobby will only bite if the law provides strict caps on financial damages to protect their industry.

    The trial lawyers will accept only if plaintiffs can sue for virtually unlimited punitive damage sums.

    Good luck!

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  • Joe November 10, 2010 at 2:31 pm

    I have a question, anyone have issues with drivers with tinted windows? they cant see you and its hard for you to see them.. ppl pulling out onto busy streets looking to the right only.. scary on barbur today.

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  • Tacoma November 10, 2010 at 2:56 pm

    "The insurance lobby will only bite if the law provides strict caps on financial damages to protect their industry.

    The trial lawyers will accept only if plaintiffs can sue for virtually unlimited punitive damage sums." Brad #56

    Wondering how this works in civilized countries, er, the Netherlands.

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  • Rankin Johnson IV November 10, 2010 at 3:27 pm

    Strict liability is an awful idea.

    The term "strict liability" is a well-defined legal term. It means that there is no required mental state for liability. Most crimes are a combination of an act (such as hitting someone) a mental state (such as intentionally or recklessly) and an outcome (such as causing an injury.) If one of the elements is missing (you accidentally, not intentionally, hit a person and they were injured) then you aren't guilty of the crime. In Oregon, criminal mental states are intentional, knowing, reckless, negligent and no mental state. The standards for civil liability are similar, I think, but I don't know as much about that.
    If you are driving your car at night and a drunk bicyclist dressed in black with no lights runs a light at 30 miles per hour and you hit them and kill them, you shouldn't be held liable. Liability for accidents should be limited to negligence (such as criminally negligent homicide) or recklessness (such as manslaughter). In deciding whether a driver is negligent or reckless, many factors are relevant, such as the higher risk to the cyclist than the driver and the possibility of the bicyclist swerving to avoid an obstacle. But a strict-liability rule that the driver is liable no matter how careful the driver is or how careless the bicyclist is would punish good drivers for the mistakes of bad cyclists. That's not a good rule.

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  • Aaronf November 10, 2010 at 3:34 pm

    Opus, I don't see why you would compare a car to a concealed weapon. Cars are not concealed. They are well lit at night even! So, try again?

    If a cyclist rode off of a cliff I imagine some here would blame the cliff.

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  • Brent November 10, 2010 at 3:55 pm

    @Rankin:

    Please keep in mind that strict liability for these purposes is a civil idea, not criminal, and simply places civil fault (i.e., payment responsibility) on the driver in car-bike crashes. We are very used to strict liability when we get rear-ended while driving: it's always the fault of the driver behind, except in really unique circumstances. The bike law would be similar.

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  • Brad November 10, 2010 at 5:47 pm

    Tacoma@58

    Do Dutch daytime TV viewers get innundated with ads that go something like...

    "I was hit by a car while riding my Batavus to the train station. Wilhelm van den Hoek got me 8 million Euros!!!"?

    U.S. trial lawyers have always resisted tort reforms and damage limits. Insurance companies are insurance companies. They simply will not accept "the driver is ALWAYS wrong" and can buy enough votes in Congress to stop this.

    We are no longer a civilized nation.

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  • wsbob November 10, 2010 at 6:05 pm

    Under 'Strict Liability', if I understand it correctly, drivers would be held responsible for a collision between a bike and collision, unless it can be proven that the the collision was the result of a cyclist operating their bike recklessly.

    That rules out ninja cyclists, drunks, and otherwise 'under the influence' road users. It doesn't rule out incompetent cyclists that for unforeseen reasons, pull out in front of moving motor vehicles. The brouhaha some months back over the 'do-se-do' on Hawthorne Bld between the big mouth bus driver and the cyclist, might be an example of the latter.

    "...And yes, the elderly need to be monitored a lot more closely as drivers-- I'm talking yearly physicals, retaking the written and driving test every year, doctor's note.

    We treat the under 18 crowd differently than the over 18 crowd when it comes to driver's licenses why not the over 65 crowd? ...Kt #55

    That's an idea that might be worth taking a look at, but first...what do the stats say are the higher risk drivers on the low end? Is it 'under 18', or might it be more accurately, around 'under 27' or under 28? I'm assuming the idea is to keep a focus on the competency of drivers on both ends of the age scale that have a similar incidence of traffic infractions and collisions.

    Also, having to go the whole route...checkup, written test, driving test, every 12 months for people 65 and over seems excessive. Every 24 months sounds more reasonable, though for people 75 and over, every 12 months might be worthy.

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  • Pete November 10, 2010 at 6:23 pm

    Ron (#24): I was called out by a cop on traffic duty for yelling at a car that turned into me without looking or signalling. The cop said I shouldn't have been "weaving through the cars" (I was holding my line in a bike lane, very slowly and cautiously, with some cars partially in it because they were confused by the construction - there was no weaving). The officer, after arguing with me when I asked if the law still required using a turn signal and looking when turning, went over to the driver and apologized. Apologized!

    Kinda takes "I didn't see him" to the next level, except I didn't get arrested (though that threat was made).

    Brad (#56): You nailed it!

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  • mello yello November 10, 2010 at 6:51 pm

    PIP personal injury protection is required in Oregon -- no fault coverage.

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  • Opus the Poet November 10, 2010 at 8:02 pm

    Aaronf #60

    I'm comparing something deadly to which US citizens have a right to possess (firearms) to something that is not a right and much more deadly (driving a motor vehicle). Firearms have a fatality rate of 0.45% per pull of the trigger when trying to kill people. Motor vehicles are much more deadly than that in wrecks, with a lower end of ~5% in wrecks under 20 MPH , ranging up to a survival rate measured in lives per million wrecks in the low double digits above 60 MPH. The difference between "accidents" and deliberate acts of violence is negligible on the road, but quite apparent when using firearms. To kill with a motor vehicle only requires a victim and a road with proximity. To kill with a firearm takes training, and constant practice.

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  • Aaronf November 10, 2010 at 8:23 pm

    Ok opus! Be careful on your bicycle, and wear something bright so I don't accidentally murder you while picking up my dry cleaning. I am glad that your opinion is in the minority, and I will never be subjected to this sort of scrutiny in reality!

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  • are November 10, 2010 at 10:52 pm

    re comment 65. fifteen thousand, big deal. and somewhere between a sixth to a quarter of motorists aren't even carrying that. re comment 67, you will eventually find yourself in the minority. you be careful driving to the dry cleaner, hear?

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  • Andy in Germany November 11, 2010 at 1:21 am

    I've cycled a lot in the UK and Germany on a bike, and believe me it makes a huge difference to how drivers operate around cyclists when they know they can't just say "didn't see him" and get away with it. Sure, you still get people on mobile phones, but most drivers give you a couple of metres of space and the sort of dangerous driving I dealt with in the UK is rare here, so rare I blog about it.

    Secondly, if I as a cyclist hit a pedestrian anywhere, I'm liable, same as if I drive a car. This give pedestrians extra legal protection.

    The rule is very strict with children: you hit a child, you are liable. It doesn't matter of the child made the mistake. You were driving near a child, you have to expect they will do something erratic. You hit them, in a car or on a bike, and it's your fault.

    By the same token, if I brake to avoid hitting a child, and following traffic hits my car, they are at fault. The law is clear on this: if you want to drive a one tonne vehicle about, you are responsible if something goes wrong.

    But, if I blow a red, or a stop sign, or ride without lights, or randomly drive out from a kerb that is considered to be dangerous so it's my fault if I get wrapped around a car bumper.

    Car organisations in the UK and US love to pretend strict liability would mean 'cyclist scofflaws' could do anything, to frighten their members into blocking it, but it this isn't true. What it does is clamp down on the motorised scofflaws who get away with killing people now.

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  • Opus the Poet November 11, 2010 at 9:00 am

    For those who don't know, I've been shot at with a pistol, and someone tried to kill me with a pickup truck. I wasn't hit when I was shot at, but I spent 13 days in a hospital (3 in ICU) and took more than 8 months to recover enough to walk to the bus stop when I was hit with the truck. I still have daily pain, and ringing in my ears, as a result of the guy that tried to kill me for riding my bicycle on the street.

    AFAIK the shooting was a random act as I was walking to visit a friend and not for any particular reason.

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  • spare_wheel November 11, 2010 at 12:16 pm

    "I will never be subjected to this sort of scrutiny in reality!"

    God forbid the someone driving around a multi-ton hunk of self-propelled metal would be subjected to scrutiny.

    I want the current "everyone passes driving exam" and the "take a class and remove your infraction" system to die, now.

    IMO, comprehensive drivers education should be mandatory, drivers should be re-tested on a semi-annual basis, and repeated minor traffic infractions should lead to revocation of driving licenses.

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  • Brian November 11, 2010 at 12:34 pm

    This would never work here in the US.
    Americans seem to have no interest in taking responsibility for their own actions. It's all about going as fast as I want and doing what ever I want while I'm en route.

    No fault is pathetic and standard.

    If people were held accountable for their actions the world would be a much better place.

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  • Rankin Johnson IV November 11, 2010 at 1:24 pm

    @Brent
    The original proposal was not clear about civil or criminal liability. But even assuming that it is civil only, should a careful driver be liable when a careless bicyclist causes a crash?
    There is no strict liability when one driver rear-ends another. Rather, everyone involved knows that the jury will find the driver in back to have been at fault. But that's not strict liability, it's ordinary negligence applied to a common factual scenario.
    @wsbob: Strict liability means that the driver is at fault regardless. The current law is that it is up to a jury to decide who is at fault, which could be the driver, the cyclist, both, or neither.
    The original post, and numerous comments, have suggested that the law should be changed to make it more likely that the driver is at fault. That may be a good idea, but it I don't know what that new law would look like. (One possibility is that the driver is presumed to be at fault, but the driver could offer evidence of the cyclist's bad behavior to rebut the presumption.) I agree that drivers do not pay enough attention to cyclists. But fixing that to make the driver always at fault is unfair to good drivers and to bad cyclists.
    /s/ Rankin Johnson IV

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  • wsbob November 11, 2010 at 1:53 pm

    "... @wsbob: Strict liability means that the driver is at fault regardless. ..." Rankin Johnson IV #73

    I wouldn't know what specific conditions are part of laws based on 'Strict Lability' in countries that actually have such laws. The exact meaning and conditions of that term may vary between localities that have incorporated into law.

    Maus's story included a link to an article from the UK cycling club CTC. About the conditions of 'Strict Liability', it said:

    "The law on driver insurance schemes should therefore be amended so that non-motorised road users will be able to claim injury damages from drivers who hit them, unless it can be shown that the non-motorised road user behaved recklessly (this arrangment is sometimes known, but not entirely accurately, as 'strict liability').

    CTC article on Compensation for Injured Cyclists

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  • Brent November 11, 2010 at 2:27 pm

    @Rankin:

    There may be a definitional problem when translating from the U.S. concept of "strict liability" to the Dutch legal concept of driver fault in bike crashes.

    If it makes more sense, perhaps one could look at it this way: a rear-end car crash is considered a "no doubt" crash, and places a rebuttable presumption of fault on the driver behind. I believe the Dutch law is very similar -- drivers lose unless exceptional circumstances apply. In the case of minors (and, I believe, the aged), drivers always lose. If the driver has no evidence of bad cyclist behavior, the driver loses. If, however, the driver can prove the cyclist was at fault, the cyclist will have to pay, thus rebutting the fault presumption.

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  • G Man November 11, 2010 at 8:42 pm

    Does this mean that if I'm wearing black, at night, no lights, and I run the stop sign and get hit it's NOT my fault?

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    • Al November 14, 2010 at 3:40 pm

      No: "a rebuttable presumption of fault" means that it's assumed you're not at fault, unless there is evidence that you are, i.e. running the stop sign,

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  • la rider November 19, 2010 at 10:33 am

    My dreams would be fulfilled. Driving is not taken seriously enough. If you want to get away with murder drive a car. If you kill somebody that is not in a car, just claim that you did not see them. If you kill somebody while driving drunk, leave the scene and sober up, then turn yourself in and say that you think you hit something but you were too afraid to pullover because you felt unsafe in that area. If you hit someone in another car, that is another story, you will not get off so easily. We do everything to protect the people inside the car, but so little to protect people who are not inside the glass bubble.

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  • Aaron Kuehn November 19, 2010 at 3:44 pm

    This is exactly what I've been preaching. I the US, money talks, at least to 99% of the population. If I am properly financially responsible for the damage I am capable of causing with an object I am at the helm of, I will make operating decisions accordingly. I think this responsibility should be reflected in the insurance premiums I pay. For example, driving a truck over six tons as a personal commuting vehicle should be cost prohibitive as a liability.

    I also don't believe the logic that if a cyclist or pedestrian surprises me with their actions or disobeys traffic laws, I am no longer responsible for the damage my vehicle does. It would still be my vehicle that kills or maims them, not theirs. We car drivers should take it upon ourselves to redesign the streets to make pedestrian crossings and bicycle activity more predictable, and adjust our transportation expectations to limit exposure to the liability of automobile driving, ie fewer miles, at a reduced speed.

    For those who find that this attaches a costly burden to the act of driving, especially vehicles which are disproportionately sized for their use, you are correct. That is the point.

    The collective victims of an unbalanced transportation system are demanding legal changes to the system to make driving a little less convenient, and walking and biking a lot less deadly.

    Those who are financially or mentally incapable of taking on the increased responsibility of driving should consider bicycling or transit, and the safe streets provided for them.

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  • wsbob November 20, 2010 at 10:23 pm

    Would you feel its fair to impose upon the operators of heavier vehicles, consequences resulting from vulnerable road users own bad judgment that contribute to their injury or death?

    This doesn't seem like a fair or practical burden to place upon operators of motor vehicles or any vehicles of any type that use the road. Competent and alert, legally compliant motor vehicle operators can and are sometimes drawn into hazardous traffic situations on the road by vulnerable road users that fail or neglect to be alert, competent or legally compliant in their use of the road.

    Everyone that uses a road has a personal responsibility to evaluate the level of safety of that road for the use they need to make of it, and take precautions accordingly. All road users bear some responsibility for the welfare of other road users they travel the road with.

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