Published on January 18th, 2012Written by: Matt Allyn
By Bob Mionske
“I didn’t see the cyclist.”
It’s the most common explanation motorists offer after hitting a rider.
Even though the cyclist was wearing high-visibility clothing.
Or was well-lit.
Or was riding in broad daylight.
It’s the “ignorance is bliss” defense: “I didn’t see the cyclist, and I didn’t intend to hit anybody. It was just an accident. It’s nobody’s fault.”
Well, yes, it is somebody’s fault. It’s your fault, it doesn’t matter that you didn’t “intend” to hit somebody. You did hit somebody, and if you didn’t see the cyclist because you weren’t paying attention, it’s your fault.
Let’s be clear about this point, because it’s 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’s why we call unintentional collisions “accidents.” If the driver intended to hit somebody, that’s assault. If the driver didn’t intend to hit somebody, that’s an “accident.” But just because the collision was unintentional doesn’t mean that nobody was to blame. Almost all collisions are preventable. If the collision occurred because a motorist didn’t see a cyclist who was plainly visible, guess what? It’s the motorist’s fault.
I’m reminded of these excuses by two recent cases involving drivers who “didn’t see” the cyclists they hit. Sommit Luangpakham is an Ottawa motorist who was recently found guilty 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.
Luangpakham’s excuse? He thought he had hit a pole. Even though he’d 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’s 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 “momentary” lapse of attention. In other words, he “didn’t see them”—the negligent driver’s universal Get Out of Jail Free card.
Let’s accept Luangpakham’s claim at face value: He didn’t see them. That means he wasn’t keeping a proper lookout while driving, even though the law requires him to do so. The fact is, “I didn’t see them” isn’t a defense: It’s an admission of guilt. Whether Luangpakham merely had a “momentary” lapse of attention—that continued for 240 feet as cyclist after cyclist smashed into his vehicle—or whether he had been drinking, as police believed, Luangpakham admitted that he didn’t 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’s driving behavior was criminal.
So here’s a suggestion for police, prosecutors, and personal-injury attorneys everywhere. The next time a driver tells you “I didn’t see” 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’s behavior (it was nighttime and the cyclist was riding without lights), then treat that statement as what it is—an admission of guilt.
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.
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.
“You’re supposed to be able to see what’s on the road in front of you and you should only proceed when it’s safe to do so,” Outagamie County Sheriff’s Capt. Mike Jobe said. “When you run into another vehicle or in this case, a bicycle you should have seen, then obviously it’s our view that the only reason you didn’t see it was because you weren’t paying attention.”
That’s exactly right, although I would argue that there is a world of difference between “inattentive driving”—the violation Gustman was cited for—and inattentive driving resulting in a death. So why wasn’t 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’s one more example of the enormous donut hole in the law 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’s Department did the best they could with the existing law, sending a message to negligent drivers that “I didn’t see them” is not going to be a Get Out of Jail Free card in Outagamie County. They got it right. Now it’s time for police, prosecutors, and legislatures everywhere to start getting it right, too.
Research and assistance by Rick Bernardi, J.D.
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January 19, 2012 – 10:16 am Log in to reply.
Thanks for this post. Here in Illinois, this is known as the “unseeing eye” defense. I hear it all of the time. However, the defense has long been barred by our courts. Here’s more on the subject: http://www.mybikeadvocate.com/2010/03/unseeing-eyes-of-motorists.html
January 19, 2012 – 11:26 am Log in to reply.
I am going to play devil’s advocate here, so be kind.
As both a cyclist and a car driver (like 99% of us are) I have thought about this after almost getting run over by a person in an SUV making a left turn pulling out of a school (stop sign) on a relatively well traveled road.
It was a clear summer day about 4:15 in the afternoon and I was riding in the correct direction in the 2′-3′ shoulder. Red bike, red jersey. I considered myself pretty visible given the circumstances.
As I approached the school entrance/exit with vehicles lined up to pull out, I (as a defensive driver/cyclist) became extra aware of the situation.
The driver at the stop sign wanted to make a left. I saw her look in my direction (I was approaching from the left), look right, then look left again (essentially right at me), and then she pulled out when I was right in front of her (I estimate my speed was around 15 mph at the time).
I had to swerve to keep from getting hit as she noticed me just in time to slam on the brakes. Above my loud vocalization of a short prayer (I yelled \Jesus Christ\ really F’ing loud as I swerved) I her her shout: \Sorry, I didn’t see you\.
And after thinking about it, I do believe her.
I saw here look in both directions and she wasn’t visibly distracted (not on phone, putting makeup on, kids), and yet she didn’t see me even though she was looking right at (or through) me.
Think about this when you are driving a car. When you are in a car you are mostly focused on other cars on the road ahead of you. So your \center of focus\ would typically be at minimum 100′ to a 1/4 mile. Anything closer that that could conceivably \be invisible\.
Case in point: My wife, in the passenger seat, often points out things to me to look at. Typically I never see them when she points them out because my center of focus is 1/4 mile down the road and what she is pointing out she is looking at as we pass it.
So yes, it is possible for a cyclist with ridiculously bright jersey on a clear day to be invisible to a motorist.
So the solution for both parties is an increased AWARENESS. Motorists need to be more aware that they need to look out for cyclists also. Cyclists need to be aware that motorists are looking to avoid hitting other cars and might not necessarily be looking to avoid a cyclist (which is less common than other cars on the road).
Distracted Driving, well now that is a whole different issue that also needs to be addressed.
Steve In Fairfax
January 19, 2012 – 12:35 pm Log in to reply.
@ Marty. I can see your point. While I am, like most cyclists, more aware of other bikes on the road when I am driving a car than the average motorist, I can see that people would look ‘right through’ you as they are looking for a larger wider vehicle. I would recommend that all cyclists use the strobe lights on both the front and rear of the bike whenever they are on the road. That flashing light will attract a motorist’s attention better than anything else and can be seen for a long distance.
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January 19, 2012 – 2:10 pm Log in to reply.
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January 19, 2012 – 5:18 pm Log in to reply.
@ Marty – You’ve just described someone not using due care with a a pretty effective item for killing and maiming others. The fact that many people do not use due care does not make it excusable. It really makes it even more clear that there needs to be stricter punishments in place to encourage people to operate vehicles more carefully. Take driving serious, because it is. If Airline pilots made mistakes at the same rates that car drivers do, something would be done about it, we wouldn’t make excuses. It’s LONG past time to hold careless auto drivers accountable for the vast amount of deaths they cause each year (Around 40,000 deaths in the USA alone each year.). It’s inexcusable.