A Cynics Viewpoint: An Unintended ‘Legal’ Consequence of Increased Bicycle Infrastructure

Summary

Background Reading

MassBike’s Response To Decision Not To Indict Driver In Wellesley Fatality

Black memorial RibbonEarlier this week, we learned that a grand jury decided not to indict the driver of the truck that stuck and killed bicyclist Alexander Motsenigos in Wellesley last August. We are outraged at this result, and our hearts go out to the Motsenigos family who must suffer this injustice on top of their loss. We are trying to understand how this happened, in what would appear to be a clear case of motor vehicle homicide. Here is what we know:

  • The Wellesley Police Department performed a thorough investigation beginning immediately following the crash. They interviewed witnesses, collected evidence at the scene, reviewed traffic camera video, executed a search warrant at the company that owns the truck, impounded the truck, and performed extensive forensic analysis on the truck. Police tracked down the driver and interviewed him at his home the next day, and concluded that he was not being truthful in his account of the incident. They performed a simulation of the crash using the truck, a bicycle, and an officer the same size as the driver to determine what the driver could have seen. You can read the entire report of the investigation here, but be warned that it is graphic and disturbing.
  • The police filed a variety of charges against the driver, including motor vehicle homicide. The driver was also charged for Unsafe Overtaking of a Bicyclist, a law passed as part of MassBike’s 2009 Bicyclist Safety Act.
  • Prosecutors presented the case to a grand jury, which, in December, declined to indict the driver, effectively bringing an end to the investigation. Grand juries are county-wide, and closed to public view, so we will never know who was on the jury, what evidence was presented, or what was said in jury deliberations. The grand jury would have been composed of citizens from multiple communities in Norfolk County.
  • The Motsenigos family has filed a civil lawsuit against the driver and the companies that own and operate the truck.

So what went wrong? Based on the information available to us, it appears that the police and prosecutors took this case very seriously, and performed a thorough and professional investigation. Ultimately, the decision was in the hands of the grand jury and we cannot know what was in their minds. We can and should assume that the grand jurors took their job seriously – they are constantly reminded of the gravity of their decisions. But we can assume that many of them, perhaps all of them, are not cyclists – we represent a growing, but still small proportion of the population. We can be certain that most of the jurors, probably all of them, are drivers – most people, including most bicyclists, are.

I will speculate that some, perhaps all, of the jurors put themselves in the place of the truck driver and asked themselves the question “should I face felony criminal charges if I accidentally hit a bicyclist?” And in the world as it exists today, with bicyclists forced to mix with cars and trucks on roads that were not designed to be shared, and inadequate education of both motorists and bicyclists, those jurors might have decided it would not be fair to hold the truck driver accountable. The system did not fail us, but our fellow citizens did.

An Cynical Analysis

When the Boub case was in the headlines we learned for the first time that we were “permitted but unintended” users of the roadway. This is the sort of language that jurists and lawyers love because it removes the onus for responsibility off the shoulders of governmental agencies and places it squarely on the individual. So when you ride without a helmet in a part of the country where you are permitted to do so it really means that the laws have been adjusted to place the responsibility for head trauma on the rider and have essentially removed it from anyone else.

Likewise in places like Illinois if you do not shovel your front walk, you have less legal exposure than if you do a bad job of clearing the snow and someone slips. The very act of trying to be a good neighbor places the onus on you.

Now municipalities are taking a very big risk in trying to do the right thing by owning the use of roadways by cyclists. And this is especially the case because it opens them up to the kinds of liabilities they were shielded from via the Boub decision. So if you pose to the general public that your “pretty green lanes” are there to make everyone safer you have just opened up a can of worms.

Steve Vance in an article on StreetsBlog Chicago writes the following:

Clybourn Avenue is wide open and begging for a protected bike lane that IDOT won't allow for at least two more years.

Clybourn Avenue is wide open and begging for a protected bike lane that IDOT won’t allow for at least two more years.

So why is IDOT delaying designs that several American cities have already been implementing for years? The agency says it wants to measure safety impacts based on robust statistical evidence, and that three years provides a representative sample.

The rationale for requiring this information would be reasonable if Chicago was the first city to ever implement protected bike lanes, but it doesn’t hold up because the results have been the same wherever protected bike lanes have been installed: The injury rate of all street users is reduced, be they walking, biking, or driving.

The problem that every governmental agency faces once “pretty green lanes” are adopted the implication is that they were “sold” on the strength of that last sentence above. According to the Trained Seals of the Church of Urban Cycling this is a slam dunk. Nowhere on the planet has safety not be positively affected when lanes go into place.

Okay. Let’s assume that this is true. (Despite the situation highlighted in the Mayor’s Report Card for 2012) And if we all assume this to be true we are not going to accept statistical evidence that while the number of crashes went down the number of fatalities climbed. That is too subtle a distinction for the Chicken Wings and Beer crowd:

NYPD is issuing fewer tickets for moving violations than at any time in the past ten years. That doesn't mean the streets are safer. Photo: Global Jet on Flickr

NYPD is issuing fewer tickets for moving violations than at any time in the past ten years. That doesn’t mean the streets are safer. Photo: Global Jet on Flickr

The Mayor’s Management Report, an annual summation of how well city agencies are doing their jobs, includes bad news for traffic safety and sustainable streets. In the last fiscal year, traffic fatalities were at their highest level since 2008, and NYPD moving violations summonses were at a 10-year low. Meanwhile, DOT missed its bike lane and bike rack goals for the year.

The total number of traffic crashes dropped for the second year in a row, falling 1.5 percent from last year. DOT says that crashes were most prevalent on highways and during overnight hours, with more than half of motorist or passenger fatalities due to speeding, drunk driving and running red lights or stop signs.

So the race is on to avoid embarrassment should the statistics here in Chicago go up when people were promised that they would go down. And that same thing holds true for the shop owners who have been promised an increase in income due to the increased access to their locations via bicycle. In a time when the US Postal Service is cutting Saturday service to avoid bankruptcy it is going to be of paramount importance that cyclists deliver on their promises to lower fatality rates for everyone, not just cyclists but drivers and pedestrians alike.

IDOT is wary of this sort of thing as well they should be. It would be like sending armed militias into every school in America on the strength of the promises of Wayne LaPierre of the NRA and then having a massacre or two occur despite these safeguards. And just imagine the headlines should it happen that one or more of the militias had been infiltrated by person who themselves turned guns on their compatriots and then took to slaughtering the children. People in government have to consider all sorts of wild scenarios that never cross the “tiny little minds” of cycling advocates.

Those folks in the jury in Wellesley were probably asking the question “where is all the promised safety”? When you begin putting in bike lanes and you still suffer the kinds of tragedies that occurred in the Portland area where a cyclist is run over by a truck while she is in the green bike lane then the wheels come off for everyone.

Beware the fact that every time some tries to lay the blame off on another governmental agency or some wag notes that all the promised lanes have not yet been installed it merely increases the pressure on government to perform.

And since when has a governmental agency ever been able to guarantee anything?

A scant half century ago the promise of nuclear power to rid us of the need to burn coal and fossil fuel led us to build all sorts of reactors around the country. And indeed the rest of the world followed. Then Chernobyl and Fukushima Daiichi nuclear disaster struck and the wheels came off. Sometimes you have to be careful what you wish for.

If governmental agencies promise an across the board increase in safety when bike lanes are introduced then a jury has to look back and ask the hard question, if a motorist and cyclist get entangled on one of these pretty green lanes whose fault is it? If I were sitting in the jury spot I would probably have to admit that neither the motorist nor the cyclist had greater blame.

If everyone was where they should be and the accident still occurred then the fault must lie with the infrastructure design itself.

It is that kind of reasoning that keeps members of the DOT up at night.

If a person gets doored on a bicycle in a protected bike lane, then where exactly does the fault lie?