By Bob Mionske, Bicycling.com<\/p>\n
\u201cI didn\u2019t see the cyclist.\u201d<\/p>\n
It\u2019s the most common explanation motorists offer after hitting a rider.<\/p>\n
Even though the cyclist was wearing high-visibility clothing<\/a>.<\/p>\n Or was well-lit<\/a>.<\/p>\n Or was riding in broad daylight<\/a>.<\/p>\n It\u2019s the \u201cignorance is bliss\u201d defense: \u201cI didn\u2019t see the cyclist, and I didn\u2019t intend to hit anybody. It was just an accident. It\u2019s nobody\u2019s fault.\u201d<\/p>\n Well, yes, it is somebody\u2019s fault. It\u2019s your fault, it doesn\u2019t matter that you didn\u2019t \u201cintend\u201d to hit somebody. You did hit somebody, and if you didn\u2019t see the cyclist because you weren\u2019t paying attention, it\u2019s your fault.<\/p>\n Let\u2019s be clear about this point, because it\u2019s the other Get Out of Jail Free card that negligent drivers always seem to reach for. Intent is not relevant in determining whether a driver was at fault in an accident. In fact, that\u2019s why we call unintentional collisions \u201caccidents.\u201d If the driver intended to hit somebody, that\u2019s assault. If the driver didn\u2019t intend to hit somebody, that\u2019s an \u201caccident.\u201d But just because the collision was unintentional doesn\u2019t mean that nobody was to blame. Almost all collisions are preventable. If the collision occurred because a motorist didn\u2019t see a cyclist who was plainly visible, guess what? It\u2019s the motorist\u2019s fault.<\/p>\n <\/p>\n I\u2019m reminded of these excuses by two recent cases involving drivers who \u201cdidn\u2019t see\u201d the cyclists they hit. Sommit Luangpakham is an Ottawa motorist who was recently found guilty<\/a> on 10 charges of dangerous driving causing bodily harm. The charges stemmed from a horrific collision that occurred on a summer morning in 2009. Five cyclists set out on a morning ride from Kanata, Ontario to Pakenham and back. Three miles into their ride, Luangpakham drifted into the bicycle lane. He hit one of the cyclists. And then another. And another. And another. And another. He hit all five cyclists, and continued driving.<\/p>\n Luangpakham\u2019s excuse? He thought he had hit a pole. Even though he\u2019d driven 240 feet through a line of brightly clad cyclists riding in broad daylight. Even though one of the cyclists had smashed into the driver\u2019s side of his windshield directly in front of his face, leaving blood splattered on the caved-in windshield. Luangpakham, his attorney explained, had only had a \u201cmomentary\u201d lapse of attention. In other words, he \u201cdidn\u2019t see them\u201d\u2014the negligent driver\u2019s universal Get Out of Jail Free card.<\/p>\n Let\u2019s accept Luangpakham\u2019s claim at face value: He didn\u2019t see them. That means he wasn\u2019t keeping a proper lookout while driving, even though the law requires him to do so. The fact is, \u201cI didn\u2019t see them\u201d isn\u2019t a defense: It\u2019s an admission of guilt. Whether Luangpakham merely had a \u201cmomentary\u201d lapse of attention\u2014that continued for 240 feet as cyclist after cyclist smashed into his vehicle\u2014or whether he had been drinking, as police believed, Luangpakham admitted that he didn\u2019t see a line of people who were plainly visible to any driver observing his duty to keep a proper lookout. It was an accident, but accidents can also be crimes, and the jury decided that Luangpakham\u2019s driving behavior was criminal.<\/p>\n So here\u2019s a suggestion for police, prosecutors, and personal-injury attorneys everywhere. The next time a driver tells you \u201cI didn\u2019t see\u201d the cyclist, ask yourself one question: Would a driver who is observing the duty to keep a proper lookout have seen the rider? Unless there is some extenuating circumstance to explain the driver\u2019s behavior (it was nighttime and the cyclist was riding without lights), then treat that statement as what it is\u2014an admission of guilt.<\/em><\/b><\/p>\n When drivers start realizing that inattention is not a valid excuse for injuring or killing another human being, they might start paying more attention. At the least, they will start facing appropriate charges.<\/p>\n And that brings me to the approach that police took in the case of Michael Gustman, a Seymour, Wisconsin driver who hit a pair of cyclists riding a tandem, in a rear-end collision that took the life of one of the cyclists.<\/p>\n \u201cYou\u2019re supposed to be able to see what\u2019s on the road in front of you and you should only proceed when it\u2019s safe to do so,\u201d Outagamie County Sheriff\u2019s Capt. Mike Jobe said. \u201cWhen you run into another vehicle or in this case, a bicycle you should have seen, then obviously it\u2019s our view that the only reason you didn\u2019t see it was because you weren\u2019t paying attention.\u201d<\/em><\/b><\/p>\n That\u2019s exactly right, although I would argue that there is a world of difference between \u201cinattentive driving\u201d\u2014the violation Gustman was cited for\u2014and inattentive driving resulting in a death. So why wasn\u2019t he charged with a more serious offense? Wisconsin law requires evidence of reckless driving to support a conviction of homicide by negligent operation of a vehicle. It\u2019s one more example of the enormous donut hole in the law<\/a> between minor and serious traffic offenses. In the interest of justice, that gap in the law needs to be filled, but that is a job for the state legislatures. The Outagamie County Sheriff\u2019s Department did the best they could with the existing law, sending a message to negligent drivers that \u201cI didn\u2019t see them\u201d is not going to be a Get Out of Jail Free card in Outagamie County. They got it right. Now it\u2019s time for police, prosecutors, and legislatures everywhere to start getting it right, too.<\/p>\n