Posted by Jonathan Maus (Publisher/Editor) on September 26th, 2012 at 12:52 pm
The Multnomah County District Attorney's office released a memo (PDF) today on their investigation into the death of Kathryn Rickson. They have determined that the state cannot prove beyond a reasonable doubt that the man driving the semi-trailer truck, Dawayne Eacret, could have seen Rickson prior to the collision at SW 3rd and Madison and therefore he cannot be held criminally liable for hitting her.
Rickson suffered fatal injuries in the collision on the evening of May 16th, 2012. Eacret was in the process of turning right (south) onto SW 3rd from Madison when Rickson became pinned under the truck's right front fender. She was transported to OHSU but died shortly after arrival.
The focus of the DA's decision boiled down to whether or not Eacret could have seen Rickson, either on the road prior to the intersection or in his rear-view mirror prior to making his right turn. The case was investigated by Officer Pete Kurronen of the Portland Police Bureau and the lead DA was Deputy DA Glen Banfield. In addition to a detailed investigation of the vehicles and the roadway, they used three main witnesses in the case; the truck's passenger and two people in a car that was following directly behind the truck when the collision happened.
"If we cannot prove that Mr. Eacret was aware of her presence it cannot be said that he then consciously disregarded the risk of hitting her."
— Multnomah County DA
According to the investigation, scrape marks from Rickson's bicycle prove that the front of the truck was already turned to the right (facing south on 3rd Ave) prior to the collision. Vehicle evidence and witness statements also indicate that the truck's right turn signal was on at the time of the collision. In the DA's memo, one of the witnesses inside the car said the truck was "barely moving" just prior to making the right-turn:
Here's more from the car's passenger:
"I know for sure that the truck was already turning when the bicyclist went by us on our right at a good clip.” She said the truck driver could not have done anything to avoid the crash. Ms. Sirois reported that the traffic light was green when the truck started to turn right.
The driver of the car that was directly behind the truck said she knew the truck was going to turn because it had slowed down so much. She also told investigators that she believed the truck swung to the left before making the turn. (This is a common move by large trucks to make sure the rear wheels clear the corner on narrow turns. It's not illegal, but it is specifically discouraged in the ODOT Truck Operator's Manual).
Here's more from the car's driver:
"Ms. Ackerman said the truck’s right turn signal must have been on because she knew the truck was turning. Ms. Ackerman said she was 10 feet from the rear bumper of the truck. She said the truck driver could not have avoided the accident."
The other main witness was Eacret's passenger. He told investigators he "did not remember seeing a bicyclist in front of them" as they traveled east on Madison. As for whether or not Eacret swung left prior to the right turn, the passenger said he, "could not recall with certainty but believed Mr. Eacret did not swing left before making the turn." The truck's passenger saw Rickson out of his "peripheral" vision approaching the truck prior to the impact.
As for the driver, Mr. Eacret, he has been a commercial truck driver since 1986. He reported to investigators that he "never saw or passed a bicyclist" as he came down Madison. He couldn't recall precisely when he turned on his signal, but the DA's memo does say that, "the light was green and he checked his mirrors before turning and did not see anyone in his mirrors."
"Mr. Eacret said as he was turning he continued to check his mirrors because he is cognizant of bicyclist and pedestrians," reads the memo.
Eacret was "uncertain" whether he swung left prior to the turn. Its also worth noting that was not using a cell phone at the time and his blood contained no alcohol or controlled substances.
Along with witness statements, investigators tried to reconstruct exactly where Rickson was traveling prior to the collision. Surveillance camera footage from City Hall (located one block west of 3rd and Madison) captured both Rickson and the truck between SW 4th and 5th Avenues. From the footage, investigators have determined that Eacret had a 13 second head start on Rickson from 4th Ave. eastbound.
The DA's memo notes that Rickson was riding in the middle of the right traffic lane between 4th and 5th (where there is no bike lane). This is important because Officer Kurronen concluded that the driver of the truck, "cannot see a cyclist if the cyclist is lined up directly behind the trailer."
So, the question is; when did Rickson move from the middle of the right lane (between 5th and 4th) to the bike lane (which starts between 4th and 3rd)? And, did she move to the bike lane early enough to be seen in Eacret's side mirror and therefore have some obligation to avoid her?
The DA knows from witness statements that Rickson did indeed move into the bike lane at some point, but the surveillance footage doesn't show that block.
Using calculations of speed and distance extrapolated from the surveillance footage and matched with witness statements, Officer Kurronen determined that at speeds of 12.5 mph to 16.6 mph, Rickson would have been between 83 and 110 feet behind the truck when it started its turn.
With these facts and observations on the table, in order for a criminal prosecution, the DA had to prove that Eacret's actions were "criminally negligent" or "reckless" under the circumstances. Those two terms are defined by law:
Criminal Negligence means that a person “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 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.” Recklessly means that a person is “aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists.”
Looking at the circumstances, the DA's memo spells out why they have declined to prosecute Mr. Eacret.
The DA says Eacret never passed Rickson prior to his turn and that, "instead, all indication is that she approached his truck from behind." While Officer Kurronen determined the truck's side-view mirrors wouldn't help in seeing Rickson while she was directly behind the truck, the DA's memo states that, "The same test indicates that if Ms. Rickson was... to the right/in the bicycle lane, she would be visible in the standard flat side view mirror but would be very small and difficult to see in the truck’s convex mirror." (The memo also notes that Rickson had a flashing white headlight on her bike.)
Here's more about that key question of when Rickson entered the bike lane (emphasis mine):
"It is unknown when Ms. Rickson moved from out of Mr. Eacret’s view in the middle of the right traffic lane to the bicycle lane. If Ms. Rickson moved over after the truck was angled into the start of its turn, then the mirrors would have been useless for spotting her. We know that Mr. Eacret had a 13 second head start from 4th Ave, which put him at 3rd Ave some time ahead of Ms. Rickson. What we don’t know and cannot know beyond a reasonable doubt is whether Ms. Rickson moved into the bicycle lane in time to become visible to Mr. Eacret before he made his turn."
The DA says Eacret, "did what he was supposed to do in his situation" and that, "there was nothing he could have done to avoid the collision."
"Mr. Eacret followed the proper procedure and rules of the road as he approached 3rd Ave and before he made his turn... He slowed to almost a stop, checked his mirrors and slowly made his turn while continuing to check his mirrors. According to Ms. Sirois who was in the car directly behind Mr. Eacret’s truck, the first time anyone ever noticed Ms. Rickson was after Mr. Eacret had already started his turn...
If we cannot prove that Mr. Eacret was aware of her presence it cannot be said that he then consciously disregarded the risk of hitting her."
In their conclusion, the DA says that, "This tragic event was an accident and is not chargeable as a felony homicide or other traffic crime."
I have also followed up with the PPB Traffic Division to confirm that they do not plan on issuing a traffic citation.
When I first read this decision, I immediately thought of Tracey Sparling, another young woman who died following a collision with a large truck back in October 2007. Similar to that case, the DA declined to prosecute because they determined it was simply impossible for the truck operator to have seen her. The PPB didn't cite that driver either because, as an officer told me at the time, "We've determined that there was just no way he could have seen her."
While Oregon's "Failure to yield" law seems clear, it clearly isn't. This tragic and sad case once again clarifies that when it comes to yielding the right of way, as a PPB Sergeant explained to me back in 2008, it's a matter of perception. "Basically," said the officer, "the driver has to perceive he has to yield the right of way."
I'm not sure what the right answer is here; but something about this remains very unsettling to me. How can we allow large vehicles on the road whose driver's are physically unable to see other people on the roadway? Why do we have bike lanes to the right of lanes where right turns are permitted? Should we just accept that people will continue to die in these right hooks? And that when they do, we'll just have to shrug our shoulders and call it a "tragic accident"?
UPDATE, 4:42 pm: The Bicycle Transportation Alliance says via a blog post that it's "time to act" and they are renewing a push for several safety measures.