made a dangerous left turn. She testified about it
in Salem yesterday.
A man’s decision to make a dangerous left turn in front of Alistair Corkett back in May led to a horrific outcome. The 22 year-old’s leg was severed from his body. Barry Allen, the man who was at fault for Corkett’s life-changing injury, was only given a traffic ticket.
If Corkett had died in the collision, the Multnomah County District Attorney’s office would have pursued criminal charges which would not only have provided some level of justice for the community but would have allowed Corkett’s family to seek restitution from the state. However, because Corkett “only” suffered an injury, the DA did not pursue criminal charges.
Back in October at a BikePortland event that was inspired by Corkett’s case, Multnomah County DA Rod Underhill did not mince words when expressing his frustration. “It pissed me off. I’m angry. It just doesn’t seem right. We need to change the law.”
“These incidents where people are not charged with a crime, really impact our reputation as a national leader in cycling. People are less likely to come to our state to ride.”
— Kenji Sugahara, Oregon Bicycle Racing Association
Yesterday in Salem Underhill took the first step toward filling “the negligence gap” by testifying at the first public hearing for Senate Bill 1553, which would add 15 words to Oregon’s current definition of assault in the third degree. If the bill passes a person would be guilty of assault in the third degree if the person, “With criminal negligence causes serious physical injury to another who is a vulnerable user of a public way by means of a motor vehicle.” (Note: SB 1553 mostly deals with an unrelated criminal issue, this section is just one small part of it.)
SB 1553 was heard yesterday and this morning by the Senate Judiciary Committee and it’s supported by that committee’s chair, Senator Floyd Prozanski (D-Eugene). Joining Underhill to testify in favor of the bill was Oregon Bicycle Racing Association Executive Director Kenji Sugahara, Deputy DA Glen Banfield (the lead on the Corkett case), and Corkett’s mom Julia Corkett (whom you might recall was present at the protest on SE Powell following her son’s crash).
The Multnomah County DA’s office says this addition to the law is needed to fill the existing gap between a traffic citation and a felony. The DA wants more options in cases like Corkett’s where the guilty party doesn’t meet the high legal threshold for criminal conduct, but deserves much more than a citation. Underhill, an elected official, is also spearheading this effort because he feels like it’s “inequitable” that Corkett’s family cannot seek constitutionally-guaranteed restitution or “prompt prosecution” simply because they are not considered crime victims by the state of Oregon.
“I understand the motivation to want to nail a person to the wall, but I also have concerns the other way. And maybe it’s because of my phobia of driving in Portland where it seems like there are bicycles coming out of nowhere all the time.”
— Sen. Kim Thatcher (R-Keizer)
In her testimony yesterday, Julia Corkett said her son is lucky because he has community support and medical insurance. “But there are lots of people who don’t have that support. This is a good bill,” she said.
Sugahara, an advocate who represents bicycle tourism and racing in Oregon, said it’s about our state’s standing in the eyes of bicycle riders everywhere. “These incidents where people are not charged with a crime, really impact our reputation as a national leader in cycling. People are less likely to come to our state to ride.”
Underhill appealed to the committee’s sense of right and wrong when he said, “Through no fault of his [Corkett’s] own, his life has been permanently altered.” After they were unable to pursue criminal charges, Underhill testified that the level of furstration in his office, “Was palpable.” “We’ve seen a number of these cases over the years and that frustration has mounted. This was the last straw from my standpoint.” (It’s worth noting that Underhill is a competitive bike racer, as are several other DAs.)
There didn’t appear to be any significant opposition to the proposal from committee members or other interest groups. But during a Q & A session following the testimony Senator Kim Thatcher (R-Keizer) expressed concerns that the new law might be unfair to some road users. In a comment directed to DA Underhill, she said, “I understand the motivation to want to nail a person to the wall, but I also have concerns the other way. And maybe it’s because of my phobia of driving in Portland where it seems like there are bicycles coming out of nowhere all the time.”
Underhill clarified that the law would only when two key conditions are met: the person must display “criminal negligence,” and cause serious physical injury. According to existing Oregon law, criminal negligence “means that a person 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.” This threshold is below the current standard of “reckless conduct” which means the person is aware of the risk but “consciously disregards” it (or in other words, does it on purpose).
The new law would only be triggered by very serious injuries to people on bicycles, motorized scooters, on foot and so on. “We’re trying to protect the most vulnerable road users,” DA Banfield said during testimony this morning. “Pedestrians and cyclists, we’re not looking to protect motorists.”
Another issue is sentencing. With no political appetite for incarceration this law limits sentences to a maximum of 11 months (thus prison is not an option). While it would be a felony charge, in most cases the DA anticipates it would result in probation and a restitution payment plan overseen by a parole officer.
At a second public hearing held this morning, Senate Judiciary Chair Floyd Prozanski sounded very supportive of it. “It seems to me that it’s a tool that may need to be there as an option.” Prozanski also said he appreciates that the sentencing guidelines are being “surgically applied.”
Underhill estimates the law would only trigger for a total of about 15-16 cases statewide per year.
A work session on this bill (and likely vote) is set for February 10th at 8:00 am in Hearing Room 3.
— Jonathan Maus, (503) 706-8804 – firstname.lastname@example.org
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Good. You should be afraid to drive a car. It’s a very dangerous activity. If people are afraid when drive, they will drive safer.
You beat me to it. This. A million times.
“Pedestrians and cyclists, we’re not looking to protect motorists.”
The specific language of the bill doesn’t seem to limit it to pedestrians and cyclists – it’s triggered by causing injury to “another”. Another what? Person? Pedestrian? Cyclist? If it is person, how does that not include someone in a car?
Sorry m, I left out a key piece of the story initially. The DA’s office has added an amendment that adds the language “vulnerable road user” to the bill. So now the new language states that someone is guilty of assault 3, “With criminal negligence causes serious physical injury to another who is a vulnerable user of a public way by means of a motor vehicle.”
Thanks. I found the amendment.
“bicyclists are coming out of nowhere all the time”
I guess that’s kind of like “drivers are never paying attention”. I wonder whether there’s any cause/effect relationship there.
Maybe, but not paying attention fails to meet the test of “criminal negligence” unless perhaps something ridiculous like texting or reading a book while driving. But “not seeing a cyclist” falls far short of the mark of criminal negligence. That’s just the risk you take when riding in traffic.
Most people ‘not seeing cyclists’ are not doing enough to TRY to see cyclists. And theirein lies the negligence.
Like I said, FAR short of “criminal” negligence.
This law, if passed, will be subject to the same problems the VRU amendment (which has been applied, what, twice?) has: it will depend on the contextual, momentary definition of “serious injury” and “criminal negligence”, as determined by responding officers.
not true at all El Biciclero. Those phrases “serious injury” and “criminal negligence” have nothing to do with the responding officers. This is about the District Attorney… and unlike police officers, they adhere to a very stringent interpretation of Oregon law which happens to spell in detail exactly what those phrases mean. see below…
8) Serious physical injury means physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.
Criminal negligence or criminally negligent, when used with respect to a result or to a circumstance described by a statute defining an offense, 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
I’m admittedly cynical, but it seems in my (probably biased) recollection of past cases I’ve read about, that the determination of “careless”, “reckless”, “negligent”, etc. rests in large part on the police report and officer testimony, which is usually sympathetic to the driver.
Further, if taken to trial, a jury determines the outcome. ‘reasonable person’ is the out. Everyone thinks themselves reasonable. So missing that a cyclists is coming toward you just before you turn is not unreasonable.
This is a side affect of the current culture, the standard of measure for such things. While strict enforcement might change the culture, some day, it will be a long time if this is the only focus.
It sounds like a great idea to me. My concern is over the definitions of “gross deviation” and “reasonable person”.
It sounds like an awfully big gray area for letting people off the hook.
Unfortunately the PPB officers, while they say they are citing negligent drivers, usually will give them a slam on the back with a “Carry On!”
I assume LEOs will still have to determine whether or not a cyclist ‘could have been seen’.
“If Corkett had died in the collision, the Multnomah County District Attorney’s office would have pursued criminal charges”
That seems like a bold assumption, considering Mark Angeles did die and Jolene Friedow only received a citation.
Friedow’s behavior would have needed to be a gross deviation from what a reasonable person would have done. Is the ‘reasonable person’ the majority of drivers? If so, I don’t think the police would have determined that she did anything grossly different than what the majority of drivers would have done, especially since they could not tell if Mark was even visible.
The majority of drivers are not reasonable, particularly when taken as a group.
Very different cases Scott. In Corkett case, DA determined that Barry Allen should have and could have made a different choice. The DA feels he made the wrong choice despite the risks, hence their belief he would have been criminally negligent if that charge was possible under existing law.
In Mark Angeles case, Jolene Friedow’s actions were not considered as dangerous or illegal as Allen’s (she also didn’t have a prior record of careless driving like Barry Allen did). Remember, two conditions have to be met.. the injury/death AND the criminal behavior. Friedow’s behavior (at least according to the DA) didn’t fit the bill.
I’m still upset at the decision in the Mark Angeles’ case. I think a reasonable person would be able to (and should be expected to) see, recognize, and yield to a person on a bike 60 feet away on a sunny day in May at noon.
I agree with Dan that the police have a major influence on the perception of what is expected of a driver. In many instances reported on Bikeportland, some individual officer appear to have done all they can to place the blame onto the cyclists.
Same here J-R. 50-60 feet does not take very long when you are going down any kind of hill on a bike. Mark Lindau was following me down Vista at the speed limit when a kid took a left turn in front of us from Market about a week after Angeles was Killed. Mark destroyed the BMW but suffered a broken ankle, wrist, and was skewered by the shattered top tube through his shorts into his leg. He was lucky! the policeman said he was writing the driver up because he was not looking up the hill. I had seen the driver looking and I was dressed very brightly, mostly red, yellow, blue ETC… Lindau is ready to get back on the bike this week.
I understand the complexities and the small differences, but I think saying they’re very different is a stretch. It’s safe to say if Friedow had yielded Angeles would still be alive, and if Allen had yielded it’s safe to say that Corkett would still have both of his legs.
Friedow was towing a car at the time, and professional drivers should be held to higher than ‘normal’ standards. “I didn’t see him” is not a good enough excuse for killing someone.
And Mark had no responsibility to approach intersections with any caution whatsoever because he was on a bike, right?
Maybe he thought that too. If so, that attitude cost him his life.
We’ve gone over that already. He would not have had any time to react or get out of the way.
unless he had approached the intersection at a lower speed
Or stayed home altogether. Yes, now I see how it was his fault.
Yes we have gone thru it already and had he slowed for the intersection the truck in his path would not have been an issue. Lack of respect for the dangers presented by all intersections cost him his life. The only folks who disagreed were some on this website who have an obvious bias which prevents them from seeing reality.
Actually in many ways, both cases are EXACTLY the same. Both left turns across oncoming traffic. Those types of turns kill thousands every year IN CARS. Bikes don’t stand a chance – this is a hazard due to negligent signal design where it is legal to cross the path of oncoming traffic. But this design is standard at the majority of intersections. Neither case would even come close to being criminal negligence.
No. When there is no left turn signal, the person turning left need only wait until there is no oncoming traffic to make their maneuver, yielding to any and all oncoming traffic. It’s rather simple, I manage to do it several times every single day without incident. Failing to observe this simple concept (presumably because you’re impatient) and injuring/killing someone is or should be considered negligence on a criminal scale.
Wishing reality was different will not make it different. I’ve tried it. Doesn’t work.
prior record would probably not be admissible in a criminal prosecution
That’s because it was 100% clear that the cyclist was more responsible for the accident than the driver. No use to charge the cyclist with criminal negligence when his own actions resulted in his death.
I find this comment offensive.
Many times the truth is painful. Examples:
“Bills wife is a criminal” – true, although painful to many.
“The president committed treason by giving “the big one” to a nation that vows to destroy us” – true, although painful to many.
you had me until you gave your examples
Like I said, the truth is sometimes painful.
It’s offensive because it’s not true. The cyclist had right of way and should have been visible at noon on a sunny day. The driver didn’t look and turned when they did not have the right of way.
Believe what you want. But the justice system agreed with me.
While I strongly support this law I suspect that it will have about the same impact as the VRU careless driving amendment (e.g. almost no impact).
Statutes that could be used to prosecute vehicular harassment already exist but they are almost never used. IMO, the limitation is not a legal one but a cultural one.
Hey, if the 85th percentile goes 10mph over the speed limit, we should raise the speed limit!
I hear you soren. I’ll just say that culture and legal are intertwined. In this case, the cultural resposne to Barry Allen getting off with a traffic ticket is what led to Rod and his colleagues to try and find a legal solution. And if this law gets changed, I think the pendulum will swing back to culture because it will be making a clear signal that we (Oregonians) feel it’s culturally unacceptable to drive negligently and hurt someone and only get a traffic ticket.
I would think that it would be applied here: http://www.oregonlive.com/pacific-northwest-news/index.ssf/2015/05/driver_who_ran_red_light_kille.html
It seems like Senator Thatcher is coming from an “it could have been me/could be me” perspective, which I believe is why many laws are lax or non-existent. Since so many on the road are irresponsible and/or reckless but don’t think they’re a problem or need to change anything, it is time to pass laws (and enforce them and those already in place) that force people into better behavior. I try my best as a driver (and pedestrian) to be safe and courteous but I still mess up sometimes. But if I mess up, I still expect to be held accountable if something happens.
I wish I had known about this. It would have been wonderful to meet Julia Corkett. We could have backed her testimony up with Families For Safe Streets and invited her to join (which I’ll work on).
I emailed you Julia’s contact info Kristi.
And RE: Senator Thatcher… At both days of public hearings she mentioned how she and no one else she talked to have any idea what “green bike boxes” are. As if her lack of knowledge about a traffic control device somehow invalidates the seriousness and/or urgency for this law.
Driver ignorance can be partially blamed by the state, who administers driving tests. Clearly, the exam is not rigorous nor frequent enough. This, coupled with generations of drivers having free reign over the road and subtly being told that they are not accountable for their actions is what fosters this sense of entitlement. Of course no one wants a new way to get in trouble, but they don’t think that maybe they should drive more carefully to avoid the trouble in the first place.
Driver responsibility/accountability has been slowly diminishing over the years such that more and more “little mistakes” (that can lead to catastrophic consequences) are tolerated and excused because “everyone knows” how hard it is to drive and pay attention to everything, know the rules to which you are subject while driving—or even keep straight which pedal is the gas and which one is the brake. To suddenly impose an appropriate level of responsibility onto the driving public now appears to be draconian and politically impossible, but unless we want more people to be maimed or killed, we need a—what’s the term they use on Wall Street? Correction?
She’s a great example of the plethora of ignorant, selfish people in our society. It’s a shame that she is in a position of power.
has the green box been accepted by MUTCD?
I’m not looking for incarceration, but I’d think a “reasonable” part of the sentencing for this offense would involve a significant license suspension. Less for punishment than for protecting the community.
My concern isn’t at all about the need for this legislation; only that it seems it might not pass the “fairness” test.
“We’re trying to protect the most vulnerable road users,” DA Banfield said during testimony this morning. “Pedestrians and cyclists, we’re not looking to protect motorists.”
Why not protect motorists as well? Motorists are just as deserving of protection from the actions of other motorists as are more vulnerable road users. As we on this forum will agree, automobiles are VERY dangerous devices. They cause untold pain to tens of thousands of PEOPLE every year. But those victims are mostly in automobiles themselves. As others have noted; we need a cultural shift here. It’s time people started taking their responsibilities behind the wheel seriously.
Motorists are protected by heavy steel cages, where pedestrians and cyclists are only protected by laws and clothing.
You may only be protected by laws and clothing, but intelligent cyclists are protected mostly by that gray stuff between their ears.
Lots of intelligent cyclists are killed by drivers not paying attention.
Many times the number of cyclists killed by inattentive drivers avoid accidents by using the gray matter between their ears. It’s pretty useful stuff. Try it.
Perhaps you can expand on what these folks did wrong. Heck, just pick one:
You are arguing a different point of “responsibility” than this law would—or any law can—address. The law can only draw lines around the behavior expected of individuals in the kinds of situations it intends to address. The law cannot intuit who might be able to avoid adverse outcomes by compensating for the mistakes of others—and even if it could, would it be moral to hold people responsible for avoiding others’ bad actions? The law can only address the grave mistakes (or willful actions) that initiate the events that lead to adverse outcomes. Would we hold an assault victim responsible for their own assault because they didn’t run fast enough? Do we hold people accountable for being “in the wrong place at the wrong time”? Does the law hold fraud victims responsible for not realizing they are being scammed?
Your “gray matter” argument, if we ignore the offensive nature of the implication that any cyclist that gets run over by a car must not have or be using their brain, serves only to smugly point out that bad actions by drivers could be anticipated and avoided if we all saw fit to employ your advanced level of experience and quick reaction time. Nobody is going to be able to avoid every single driver mistake; I’ve had drivers suddenly swerve into my path, and it has been only by “luck” that there was enough distance to give me time to swerve or stop. The only way to avoid all driver mistakes is to stay off the road. Maybe that’s what you are advocating? If not, and you find yourself riding in any kind of traffic, be careful to always use your own “gray matter”, as sometimes the school of street smarts has expensive tuition.
Please keep us updated as this bill moves through the Legislature. I want to know who supports it and who opposes it. November is coming.
OK, so this is something. What we need even more though are LEO’s and DA’s that will actually use the laws instead of letting drivers off with a $1k slap on the wrist for killing a cyclist.
More like a $240 slap on the wrist.
Put me on the list for wanting updates as this bill progresses (or not) through the lege.
The DA (doesn’t stand for what you think it does) did not charge the driver in the Corkett case because there was no case – it was a standard accident that occurs in driving and Mr. Corkett was as much or more responsible for it than the driver of the truck.
Article above says change to law adds 15 words: “If the bill passes a person would be guilty of assault in the third degree if the person, “With criminal negligence causes serious physical injury to another by means of a motor vehicle.””
There was no criminal negligence in the Corkett case. This law would change nothing for Mr. Corkett. You can know this because this is already the law – it is understood that criminal negligence resulting in injury is a crime – this is nothing new. These folks are wasting taxpayer money.
Please explain to me how Mr.Corkett is responsible for the collision that took his leg and forever changed his life? Barry Allen failed to yield to oncoming traffic, that had a green light and the right of way.
The fact that his life is forever changed does not enter into the equation in who is at fault. Do we feel sorry for him? Of course! We all do. We wish him the best possible outcome in his recovery – better than his wildest dreams.
He is partly responsible because he did not use caution as he approached the intersection. Unfortunately on a bicycle, unprotected, nearly invisible to car drivers (sorry, wishing it were different will not make it different), if you want to survive in city traffic you must be prepared to stop as you go thru an intersection. Drivers cannot see thru trucks/cars to determine if a cyclist is there. Not sure if Corkett was using all the visibility tricks (bright colors, lights, etc). His partner, in front of him as I recall, did avoid the collision so you tell me what Corkett was doing that resulted in him hitting the truck, yet his own cycling partner was able to swerve and avoid the collision.
Sure, I think the pickup truck driver shares some responsibility, but the cyclist had as much, probably more. By slowing down and being ready to stop Corkett could have avoided the whole thing.
But don’t forget – these left turns at intersections are due mainly to the design which allows left turning traffic to cross oncoming traffic, relying on the human operators who are fallible, to make the decision to go or not. It is NOT a safe design. Understanding that simple fact, you, as a cyclist WILL slow and be prepared to stop or else YOU may be the next statistic. It is your decision to be safe OR NOT.
Your own words indict your argument, the truck basically went between the two cyclists hitting the one in the back. This says had the cyclist been going faster he wouldn’t have been hit, the same as his partner wasn’t hit.
Wrong. The first cyclist veered to the left so he did not cross the path of the truck. He was able to veer and stop without a serious collision, before crossing the path of the truck. Corkett for some reason was not able to avoid the truck, even though his partner, riding in front of him, was able to do so.
Your logic on who is responsible for the collision is not based on any laws, but simply the attitude that you can be responsible for everything that happens to yourself. This is true if you live in a bubble, but not when you live and ride a bike in the real world, where laws and traffic force you to put your life in other drivers hands momentarily, exactly like what happened on this day.
The other rider made it out of harms way by inches. He grabbed the brakes a second, maybe even half a second sooner, and was able to skid past the rear bumper of the truck and slide to a stop against the hood of an oncoming vehicle. I know this because I am the other rider. We approached the intersection with caution, as we always do, and I even had a moment of slowing down to anticipate the light possibly changing to yellow. After it remained green and the truck driven by Barry Allen stopped in the intersection, appearing to yield, our only option was to enter the intersection. Unfortunately we were putting our lives in the hands of a driver who wasn’t responsible enough to pay attention to his surroundings and he accelerated at us.
You can believe “justice” agreed with you on this one but even the DA wasn’t happy about making this decision. Under the current law, they needed to prove Barry Allen knew of the danger and disregarded the risk he was aware of and acted with recklessness. With the Negligence Gap revision, I believe Barry Allen would end up with more than his $240 ticket and although that wouldn’t do anything towards bringing my friends right leg back, it might keep drivers like him from getting back on the road right away and doing this again.
A “standard accident” is what happens in a 2-year-old’s training pants.
It’s a subtlety, but you are wrong about current law. There was indeed what would be considered “criminal negligence” in the Corkett/Allen case. What there was not, and why the District Attorney (what would you think we though “DA” meant?) could not bring any charges against the driver, was recklessness. “Negligent” and “reckless” are two different standards, and the former is not addressed in the current version of the law in question. This amendment seeks to lower the threshold for holding drivers accountable for what they should have known/seen/understood as part of being a driver, vs. what they knew about and willfully disregarded.
Also, your notion of “responsibility” for this collision is not based in legality, but rather on the law of the jungle, or self-preservation. You are correct: if I wanted to “take responsibility” for my own safety, I would not leave the house. By venturing out into the world, I am taking my life in my hands and anything that happens to me is my responsibility. I am being un-American if I try to blame my problems on someone else; the only person looking out for me is me. If I fail to wear my helmet and body armor, if I ever assume others are playing by the same rules as I am, or I fail to give in or run fast enough away from anyone who attempts to harm me or steal from me, I sure enough deserve what I get, don’t I?
However, from a legal perspective, blame and responsibility are viewed differently (IANAL [doesn’t mean what you think], so if you know one you can ask them). A left-turning driver has a legal obligation to yield to oncoming traffic. If they fail in that obligation, they are responsible. That’s it. If you hit someone while making a left turn (assuming everyone was obeying signals), you failed to yield—and furthermore, you failed to be aware of a substantial and unjustifiable risk that someone would get run over by your actions. That is the definition of “negligent”.
Your theory of responsibility is the same one that says, “if your bike gets stolen, you’re responsible because you didn’t use a good enough lock—don’t blame the thief.” But how far are you willing to take that theory?
This is a disconnected response to Reginald.
The truck driver did not hit Corkett. Corkett hit the rear passenger side of the truck and the bumper if I recall correctly did the damage to his leg. No court anywhere would view this as anything near “criminal negligence” and that will not change if the new wording is added.
Please. This is like saying that if I jump on top of you, you failed to be standing somewhere else.
Entering someone’s path when they are “so close as to constitute an immediate hazard”, such that they have no time to react, let alone stop, is still your fault. If Corkett had been driving a car there would be absolutely no question whatsoever about who was at fault here. Criminal negligence is merely the failure to be aware of a substantial risk that you should have been aware of. Drivers in this country are too used to not having to pay much attention; they assume exactly what you appear to: that everyone will get out of my way—that everyone else has a duty to get out of my way. Fortunately, in most cases, the law still puts the onus of awareness on the one creating the risk. In the case of Corkett/Allen, the left-turning driver, being the one who was moving into the path of oncoming traffic, was the one with the duty to yield. If you fail to see someone that you are to yield to (with the possible exception of an unlit vehicle operator at night, which was not the case here), it can only mean that you were not paying enough attention—you failed to be aware of a substantial risk.
Follow-up—answer this question: If I am making a left turn on my bicycle, and I turn in front of some driver who is going the speed limit and obeying all traffic control devices, but I enter his path when he is only 15 feet away from me and has no time to even move his foot to the brake pedal before obliterating me, who is at fault for the collision?