Column: Pothole Prairie, by Tim Engstrom

Maybe. It depends on what your definition of “accident” and “negligence” are.

On Nov. 9, 2013, a headline of a column on the opinion pages of the New York Times read: “It is OK to kill cyclists?”

The author, Daniel Duane, writes about witnessing an SUV striking a cyclist during a triathlon. Then he describes a friend who was hit by a car.

“The anecdotes mounted: My wife’s childhood friend was cycling with Mom and Dad when a city truck killed her; two of my father’s law partners, maimed. I began noticing ‘cyclist killed’ news articles, like one about Amelie Le Moullac, 24, pedaling inside a bike lane in San Francisco’s SOMA district when a truck turned right and killed her. In these articles, I found a recurring phrase: to quote from The San Francisco Chronicle story about Ms. Le Moullac, ‘The truck driver stayed at the scene and was not cited.’

“In stories where the driver had been cited, the penalty’s meagerness defied belief, like the teenager in 2011 who drove into the 49-year-old cyclist John Przychodzen from behind on a road just outside Seattle, running over and killing him. The police issued only a $42 ticket for an ‘unsafe lane change’ because the kid hadn’t been drunk and, as they saw it, had not been driving recklessly.”

Duane said he found countless similar stories with a simple Google search and writes: “You don’t have to be a lefty pinko cycling activist to find something weird about that. “

Writer Georgia Perry of SantaCruz.com wrote about the death of a librarian, local musician and cycling activist in Santa Cruz, Calif., by the name of Josh Alper. His friends and family were demanding charges by filed against a driver who supposedly fell asleep at the wheel and killed Alper.

“Josh Alper is not the only bicyclist who has died this way — in the bike lane, obeying all the rules of the road and wearing a helmet. In November, just 10 days after Alper’s death, a 41-year-old cyclist was hit by a car and killed in Newport Beach. While riding her bicycle in Woodside last September, Joy Covey, the former CFO of Amazon.com, was struck and killed by a van making a left turn. And in August, a 24-year-old woman was run over by a delivery truck in San Francisco. There are many more stories like these,” Perry wrote.

The story goes on to describe a civic debate over whether Santa Cruz wants to be known as a bike-friendly community, including how its police and prosecutors deal with biking deaths.

So I asked a friend of mine about all this. Is it legal to kill cyclists? He is a former journalist who now is a lawyer and many of his good pals are cyclists. I am not naming him because, well, he normally charges for legal advice. He was being helpful and not expecting to be in print. He made several good points these reporters and other bike activists hadn’t:

• “The law makes very little distinction between bicycles, motorcycles, cars and pickups for all laws that matter here. The reason for this is that drivers of all those vehicles generally need to follow all the same rules of the road.”

• “The reporter (and, it would seem, the widow) ignores the most important part of the law of traffic collisions: the civil courts. Josh Alper’s family should have received a huge amount of money from the car driver’s insurance company and perhaps the car’s driver personally … The kind of traffic mistake that killed Alper is known as negligence.”

• “The reporter seems to have a belief that because this driver’s conduct resulted in a death, it should naturally follow that the driver was guilty of a very serious crime. This stems from a severe misunderstanding of the criminal law. The criminal law is not designed to punish outcomes. The criminal law is designed to punish behavior.”

• “The law of vehicular manslaughter generally requires ‘gross negligence,’ meaning more than a simple mistake — something reckless, or depraved, or otherwise well outside the conduct of a reasonable person.”

• “The fact that an accident happens is not, in itself, evidence that a crime has happened.”

• “I tend to think that physical barriers between bike lanes and motor lanes are the only solution. The real problem here is that collisions that barely scratch a car can kill a biker.”

Good points. I love cycling, and one time an SUV came within three feet of me. Phew!

But from what I have read in biking forums is there are two more angles those two writers failed to pursue. Many families of killed cyclists who wish to pursue civil lawsuits run into the problems of poor documentation of the collision, often because some law enforcement officers were more interested in clearing the scene to let traffic resume rather than figuring out what killed their loved one.

The other angle is that motorists will see what they are looking for. It’s a documented phenomenon and is the reason behind the “Start Seeing Motorcycles” campaign. If drivers are looking for cars and trucks, they tend to miss the two-wheeled travelers. The fact is that the more motorcycles and bicycles are in a community, the more safe the riders are because the community’s automobile drivers become accustomed to seeing them.

 

Tribune Managing Editor Tim Engstrom’s column appears every Tuesday.