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From the following article - http://www.guardian.co.uk/commentisfree … ngholidays
"There is another important factor at work in the Netherlands and in Austria, Denmark, France, Germany, Italy, Sweden and several others European countries. It's the principle of strict liability. This puts the onus of responsibility on drivers in civil compensation cases in the event of a collision – not on the cyclist or pedestrian as is the case here. It does not affect criminal cases. Furthermore, as Roadpeace reports (pdf), in several of these countries children and the elderly are deemed not liable for their actions in civil cases. As far as I can see, this is bound to focus drivers' minds."
Of course, God forbid we pass any laws in Texas that make it easier to hold people accountable for their actions; it would probably be about as easy to get the Texas legislature to create strict liability for killing a cyclist as it would be to get them to legalize marijuana.
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Of course, God forbid we pass any laws in Texas that make it easier to hold people accountable for their actions;
If the onus of responsibility is automatically on the other side, I don't see how that `makes it easier for them to hold you accountable for your actions'. And certainly, if there's certain people who are automatically deemed `not liable', I don't see how that makes it easier to hold them accountable for their actions -- at least not if they're the ones who should be be held liable for their actions.
And here, the `onus of responsibility' is not automatically on the side of the cyclist or the pedestrian anyways -- I don't know where you're getting that. But by all means, find the law that makes it so. And if you're talking about how the police investigate things, remember, this is all about civil cases, not criminal cases. When people complain that cyclists don't get justice, that's usually because criminal police/DA/courts have failed (to provide justice), not because the civil courts have failed. (And I'm not sure that civil courts are really meant to provide justice anyways.)
Last edited by dougmc (2008-11-23 17:50:16)
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I think that the case could be made that if one is willing to drive a car, then one should be responsible for what happens as a result of that driving.
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A similar case could be made that if one is willing to ride a bicycle, then one should be responsible for what happens as a result of that riding.
If you drive a car (or ride a bike, for that matter) and a child runs out between two parked cars (where it's impossible for you to avoid him or even be aware that he's there) and you kill him, you should not be found to be at fault, in a criminal or civil case. (I'll assume that you're sober, attentive, not speeding, etc.)
Similarly, if an elderly person runs his car into a farmers market and kills 15, he should be found at fault. If he can't drive safely, he shouldn't be driving. Similarly, if that elderly person runs out between two parked cars and gets killed, the driver (or rider, if it's a bike) should not be to blame.
And if a cyclist runs a red light and is hit and maimed by a car (again, sober and attentive driver, not speeding), the motorist should not be found to be at fault, civilly or criminally.
It certainly sucks if you're the one who was injured or killed, but if it's your fault, it's your fault, and it's not fair if the law decides that other party at fault just because they were there when you were being careless.
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My impression is that the bar is set too low in Austin. If you're driving 40 mph (regardless of the posted speed limit) down Lamar at night, regardless of whether you've driving a motor vehicle or bicycle, and you can't make out whether the objects next to the road are pedestrians or communication boxes, then it's arguable that you're both speeding and not following the due care statute. See TX Sec. 545.351.(b)(1) and TX Sec. 552.008, especially note (3).
If it's nighttime and you're driving 33 mph through an intersection (regardless of the posted speed limit) in a neighborhood that visibly has a high concentration of pedestrians and bicyclists and you hit a pedestrian or bicyclist, then it is arguable that you're both speeding and not following the due care statute (the latter only applies to pedestrians). Again, see TX Sec. 545.351.(b)(1) and TX Sec. 552.008, especially note (3). If, in addition, you're not paying attention to the road and had you been paying attention, would have had time to slow down at all, then you're failing to yield to another road user, regardless of whether that road user initially had right-of-way. See TX Sec. 545.151.
Similarly, someone driving a car down a residential street lined with parked cars at the maximum posted speed of 30 mph is just asking for trouble. Kids and other people will on occasion make "mistakes" and enter the street without yield to a fast moving car. If the motorist has the wherewithal to instead drive safely -- 15-20 mph is plenty for many other developed nations in such a situation -- then the kid won't die. It's just plain irresponsible for a motorist to go so fast in such a situation, i.e. the motorist is indeed responsible for the collision. Our society should recognize this rather than calling it an "accident". (The other party may share responsibility too -- I'm not here addressing the responsibility of the kid or his/her parents.)
Now, if you're caught hitting a pedestrian or bicyclist, but you're sober of alcohol and can express that you're *really* sorry for hitting that person, then you're not likely to get cited.
I think the point that aliciab was making is that some places are actually enlightened enough to recognize that motorist-person collisions generally don't occur if the motorist does what he/she can to prevent the collisions. In many places, including much of the USA, we give some allowance to motorists so that they have less to worry about.
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Then, there is the more general question of whether motor vehicles should be driven by just about anyone who wants to drive one. Our country has shown that such a policy has created the leading cause of death for much of our people, those between roughly 5-35 -- more than homicide, suicide, war, cancer, heart problems, falls, viruses, ... well, anything.
We should consider a world with very few cars. We should discuss this and actively decide what sort of balance of car use is preferred. We really don't acknowledge the carnage of private motor vehicles and that we really do have a choice to put it to an end. This isn't a five-minute conversation. This isn't a 10-year change.
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And my point is that `God forbid we pass any laws in Texas that make it easier to hold people accountable for their actions' by making certain types of people not accountable at all, and other sorts of people automatically accountable even if they did nothing wrong, that doesn't sound like a good thing. Even if they did it over in Europe. It smacks of the current`zero tolerance' craze -- remove common sense from the equation. I don't think the `think of the children' mindset will be strong enough to overcome the `it could happen to me!' mindset to get such laws passed here -- and I'd say this is a good thing.
And for the record, hitting a kid in a car at 15 mph is plenty fast to kill him, and it's fast enough to not give you time to avoid him under certain conditions as well. Sure, 30 mph is more likely to kill, but 15 mph can do it too. As can 10 mph.
In any event, the proper solution to people sometimes driving too fast for conditions is not to automatically make the motorist liable in all pedestrian/cyclist/car accidents. The solution is to properly determine when somebody is driving too fast and use that (in addition to other things) to assign liability appropriately. This doesn't require new laws -- the laws for this are already there and in effect and are probably what you referenced. Unless you (or alicab) are suggesting that judges and juries aren't smart/wise/educated/something enough to interpret the law and assign appropriate penalties, civil and/or criminal depending on the case, and so the law needs to be changed so they don't have a choice anymore?
In any event, if the goal is to make people drive less, I'd say that changing the laws so you could be automatically liable for somebody else's mistake, even if you did nothing wrong, isn't the best way of doing that. Economic means are probably the best way, granted, but the chance of bankrupting you because a pedestrian, cyclists, kid or elderly person did something stupid and collided with your car? Not a good choice.
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dougmc, I think you make some good points, but you also seem to be taking my and aliciab's arguments, exaggerating them, and then saying why exaggerated versions of our arguments are too extreme.
As far as the speed of cars and the subsequent death rate: a stopped car can kill, I suppose. Is your point that both slow and fast cars can kill? Well, duh. And no, I don't think that 15 mph is plenty fast to kill child. (20 mph might, 25 mph probably will.) Perhaps you have a source that shows otherwise?
Why is a slower speed important?:
First of all, as I suggested above, a car going 15 mph in a collision is much less deadly than a 30-mph car. Furthermore, a 15-mph car has a much better chance of slowing down to 5 mph before a collision than a 30-mph car. A 15-mph car has a much better chance of _stopping_ before a collision than a 30-mph car. What else? A 15-mph car driver has a much better chance of seeing a surprise pedestrian than a 30-mph car driver has of seeing an identically placed pedestrian. A pedestrian, child or adult, has a better chance of seeing a 15-mph car than a 30-mph car before a collision, thus giving the opportunity to avoid the collision.
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Back to the original article:
http://www.guardian.co.uk/commentisfree … ngholidays
The original article referenced speaks about civil penalties, not criminal or misdemeanor penalties.
The article references this PDF from RoadPeace:
http://www.roadpeace.org/documents/Stri … 0paper.pdf
"What is strict liability?
In road traffic personal injury cases in the UK, the burden of proof is on the victim to prove the other party was negligent. The injured party in a crash between a motor vehicle and a pedestrian or cyclist is most likely to be the vulnerable road user. Under strict liability, the burden of proof is reversed. Vulnerable victims, not drivers, are the ones assumed innocent with regard to causing their injuries."
Later, the PDF reads:
""It should be rare for a pedestrian to be found more responsible than the driver for injuries arising from a road traffic accident unless the pedestrian had suddenly moved into the path of the oncoming vehicle.""
(At this point, I'm not sure who dougmc is arguing against.)
[added later: dougmc, I think you're adding to the discussion, but I also think that your major points are already addressed in the referenced material.]
Last edited by tomwald (2008-11-24 21:45:26)
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Just so it's clear what I'm arguing against ...
1) `God forbid we pass any laws in Texas that make it easier to hold people accountable for their actions' ... it's not people in general, it's people who hit cyclists and pedestrians. These laws make it easier to hold some people responsible for their actions, and harder to hold other people responsible for their actions. `God forbid' suggests that it's obvious that we need these laws and anybody who opposes them is obviously not doing God's work or something. Well, it's not quite so clear.
Applying strict liability to motorists is not obviously the right thing to do. First, it could be applied many different ways. If you're on the road, you're liable for any accidents (with pedestrians or cyclists) -- that's almost certainly wrong, but it's quite likely what alicab is thinking. Or it could be said if you're on the road and break any law, you're automatically liable -- going 26 in a 25 zone, and the cyclist runs a red light -- you're liable. That's a pretty likely interpretation. And second, many cyclists are risk takers. They know they can usually get away with zipping dangerously around the cars, and they usually do -- but not always. Yes, it's back to the idea that cyclists break traffic laws more often than motorists, so they don't deserve respect. I don't agree with the conclusion of that idea, but the premise is generally accurate. And while I don't agree with that conclusion, I do believe that the premise is enough that cyclists in general shouldn't automatically get the benefit of the doubt in an accident.
As for shifting the burden of proof, that's a tossup. But the burden of proof has to be on somebody, and so putting it on the person surrounded by metal might be better than on the victim (as current US civil law generally works.) But this opens things up to serious abuse -- I fell off my bike and hit my head, so I'll sue some random motorist, and now he has to prove that he didn't hit me or even startle me to make me fall off my bike. But he can't prove it, because he wasn't even there ...
2) And then there's `in several of these countries children and the elderly are deemed not liable for their actions in civil cases'. This is certainly a bad thing, as it makes classes of people who can pretty much do anything they want. If a kid smashes your window in, too bad, he's not liable. (Here, parents are generally responsible for their kids. I'm not sure if that is what would happen there or not.) But either way, this doesn't work for the elderly -- if the elderly are not liable for their actions in civil cases, then if grandma has an auto accident with you, too bad -- she's not liable. This is not a good thing. Unless you're the elderly, of course -- at least until some other elderly person uses it against you.
As for 15 mph, if the kid goes under the wheel, the odds are good he won't survive. There is no 100% safe speed -- even if you're stopped, a kid could run into your car, fall, hit his head on the curb and die. Under the idea of strict liability, if your parking meter had expired two minutes before this kid showed up, you would probably be at fault ...
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You make a good case.
I think the problem arises when motorists involved in ped or bike collisions are let off the hook of any further consequences because of the understanding that they feel sorry for what they did. From the cases I've studied it seems fairly routine that a motorist can break the law, resulting in a collision with a bicyclist, and the police officer generally won't give a citation unless the officer was there. Because there is not a citation against the motorist, any civil case against the motorist is nearly impossible. -- I'd like to be corrected on this, if possible, by someone who has been through the process. I've already acknowledged that exceptions do exist.
To summarize, because a civil case is tied to the issuance of a citation that is, in turn, tied to whether an officer saw it happen, civil cases made by bicyclists or pedestrians against motorists are the rare exception, at least in Texas. Perhaps the problem could just be addressed by removing the citation requirement from civil cases.
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I am glad this posting stimulated some debate, which was my objective. I am frankly not sure whether I think strict liability is the best rule to apply in motorist-cyclist collisions, but I AM sure it's an interesting idea that merits discussion.
Strict liability, for practical purposes, makes it easier to establish liability in a civil case because it does not require the jury to determine that a person's conduct was negligent in order to find that they are liable for damages. The jury still has to make a variety of other findings - namely, that the defendant's conduct actually caused damages, the amount of the damages, etc. - thus, there's no reason to be concerned that in a strict liability situation the cyclist could just fall down, go to court, and win money from a random motorist who wasn't even there. The "onus of responsibility" in our system is currently on the cyclist - both legally, because the cyclist will have the burden of proof to establish liability, and practically, because we are essentially invisible to motorists much of the time and, if we want to arrive intact at our destination, have to assume we won't be seen or taken into account and cycle accordingly.
Tom, you are correct that a strict liability rule in Texas would make it pretty much irrelevant whether the police issue a citation to the driver. In the current system, a citation is not a legal requirement for a civil claim, but as a practical matter, the fact that no citation was issued is a strong argument for the defense. With no citation, a jury will be less likely to find the defendant was negligent; and thus, in turn, an insurance company will be less likely to pay the claim before it is filed in court or presented to a jury.
The reason I thought the use of strict liability in some European countries was intriguing was that the author of the article suggested that a strict liability rule was causing drivers to exercise more caution around cyclists and pedestrians, resulting in an overall reduction in accidents. Stripping it to its essentials, the population of motorists who hit cyclists can be divided into two groups: those who were negligent, and those who were not. A strict liability rule would impose potential liability on all these motorists -- with two consequences: (1) it would be far easier for cyclists to recover damages from the negligent motorists, since liability would not longer be based on arguments about whether the motorist was passing at a safe distance, whether it was reasonable to keep driving even though "the sun was in my eyes," etc. and (2) non-negligent motorists would be faced with potential liability for hitting cyclists. Note that under strict liability, at least as it would work in Texas and most places in the U.S., the defendant still has the opportunity to prove that the cyclist's own negligence contributed to the damages, reducing whatever money award the cyclist gets either partially or entirely (depending on the percentage assigned to the cyclist's conduct). Strict liability as a legal rule in our civil justice system has not been employed because people think it's "fair" to impose liability on the non-negligent defendants. Instead, it's based on a social policy judgment: the rule of strict liability creates incentives for people to exercise much more care than they otherwise might, in a dangerous situation. For example, if you handle highly explosive materials, you will be strictly liable for damages they cause, because society wants you to do more than exercise "reasonable care" -- society basically wants you to exercise all possible care to avoid an accident. The policy question here is whether getting behind the wheel of an enormous hunk of metal, in the presence of pedestrians and cyclists who can be killed by an accident that barely scratches your fender, ought to require you merely to exercise "reasonable care," or to be especially cautious.
As for my "God forbid..." comment: in the current political and legal climate in Texas and many other places in the United States, the overwhelming trend is toward laws and legal standards that make it harder for any plaintiff (regardless of the type of case) to recover damages from a defendant. My comment was not intended to suggest that "it's obvious that we need these laws and anybody who opposes them is obviously not doing God's work." Rather, I was making a rather flippant reference to the fact that it's extremely unlikely that anytime in the near future, Texans would be willing to consider a change in our legal rules that would make it easier for cyclists to obtain legal damages from drivers who injure them - no matter how sensible or helpful such a change would be.
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Hello,
If it's nighttime and you're driving 33 mph through an intersection (regardless of the posted speed limit) in a neighborhood that visibly has a high concentration of pedestrians and bicyclists and you hit a pedestrian or bicyclist, then it is arguable that you're both speeding and not following the due care statute (the latter only applies to pedestrians). Again, see TX Sec. 545.351.(b)(1) and TX Sec. 552.008, especially note (3). If, in addition, you're not paying attention to the road and had you been paying attention, would have had time to slow down at all, then you're failing to yield to another road user, regardless of whether that road user initially had right-of-way. See TX Sec. 545.151.
Regards,
Ali
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