BICYCLE INJURIES AND LAW CHANGE
We are tired of hearing about terrible accidents where a motorist kills or grievously injures a bicyclist by failing to give the rider a lawful share of the road and the only consequence for the motorist is a traffic ticket that doesn’t even require a court appearance and includes no drivers license suspension. Bicycle advocates and community members are frequently disappointed after a serious accident injures or kills a bicyclists when they discover that the negligent driver who caused a bad accident will only be prosecuted for a traffic violation like Careless Driving. When this happens a motorist may pay a fine of as little as $300, receive no license suspension, and resolve the matter by sending a check to the court by mail. Collisions that cause serious injuries or death to a bicyclist will usually be caused by underinsured or uninsured drivers who will never be forced to pay full compensation for damages to the persons they hurt. Oregon’s minimum automobile liability insurance amount of $25,000 creates about enough insurance for a two day hospital stay; this amount is completely inadequate for most serious injuries. One problem is that law enforcement officers and prosecutors have few options under the Oregon Criminal Statutes to charge negligent driving resulting in serious injuries or death. The Oregon law on the books that creates a crime for negligent driving is when it causes a death and the driver:
“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 a 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.” ORS 161.085(10) [definition of criminal negligence]
This crime (“Criminally Negligent Homicide” (located at ORS 163.145) is a Class B felony with a maximum sentence of 10 years and a maximum fine of $250,000. The statutory requirement for “a gross deviation of the standard of care that a reasonable person would observe in the situation” is sometimes called “Gross Negligence” and is sufficiently harder to prove than “regular negligence.” The additional requirement of a “gross deviation” creates a difficult burden for a prosecuting attorney before a jury in most death cases that involve merely thoughtless driving behavior such as drifting over the fog line, failing to yield right of way, turning left into the path of a bicyclist, or being momentarily distracted by a barking dog, cell phone conversation, or failing to properly gauge the distance between the motor vehicle and the bicyclist on the roadway. If prosecutors do not feel that they can sustain criminal convictions for careless or negligent driving, then there is little chance that the prosecution will be initiated. Because the present standard requires the level of poor driving substantially above “mere negligence,” the few prosecutions that do occur usually include some sort of gross deviation from the standard of care like continuing to drive when one realizes they are falling asleep at the wheel, running a stop sign, engaging in high risk traffic maneuvers, or driving in an aggressive manner. There is also an unfortunate view among some law enforcement officers that because bicyclists place themselves in harm’s way by insisting on riding on roadways, it is foreseeable that there will be occasional catastrophic injuries and fatalities. This “injury goes with the territory” attitude is paternalistic and anathema to bicyclists’ basic legal rights to a fair share of the roadway. Several high visibility accident and death cases in Oregon in the last several years in which the driver was merely cited for Careless Driving or a Failure to Yield have created the need for reform of the law. Oregon needs a new law making it illegal to cause serious bodily injury or death to a bicyclist due to ordinary negligence. Prosecutors would be more likely to charge this crime if it was easier to prove and less serious than the present crime of Criminally Negligent Homicide. In addition, law enforcement would be more likely to recommend criminal prosecution for simple negligence if a new status of crime victims was more widely recognized that would include bicyclists and other roadway users who are more vulnerable to being injured by negligent driving than persons encased in the protective steel of motor vehicles. Bicyclists, pedestrians, operators of open farm equipment, and motorcyclists usually sustain more serious injuries than the person in a motor vehicle who caused the collision. If these vulnerable roadway users were recognized as a group worthy of increased protection, then police officers would have a new level of responsibility and possess legislative enforcement tools to improve the safety of the roadways. Further, creation of a new label called “vulnerable roadway users” creates the opportunity for the bicycle community to partner with user groups for pedestrians, agricultural roadway users, motorcycle organizations, and equestrian groups to educate legislators about the need for law reform and greater protection. As America has awakened to the need for encouragement of alternative forms of transportation to the gas guzzling automobile, improvements in the physical health and well-being of citizens through walking and riding, encouragement of the use of roadways by non-motorized users is at an unprecedented level. Neighborhood traffic calming efforts, Safe Routes to School Programs, designation of agricultural use areas, and design of pedestrian and bicycle friendly roadways and intersections, are all intended to encourage and protect vulnerable roadway users. This evolution in American thinking about shared use of the roadway creates opportunity for a legislative enactment that would be a visible policy statement of protection for these user groups. A fluid and dynamic roadway which is a welcome arterial for bicyclists, pedestrians, farm users, and motorcyclists will send Oregon in a new direction that can serve as a model for other states.