Monday, January 11, 2010

The Vulnerable Users Law - Tread Carefully

A number of friends and colleagues of mine have been exploring the possibility of a vulnerable users law here in Connecticut. Vulnerable users laws are laws aimed at protecting those roadway users that are not protected by things like airbags, steel cages, crumple zones etc. Most commonly, these laws are intended to protect bicyclists and pedestrians and to appropriately and fairly punish those who harm them through reckless, careless, or even malevolent behavior. As an advocate for pedestrians and bicyclists I am generally in favor of such laws. Motorists who injure or even kill pedestrians and cyclists often get off with little more than a slap on the wrist. In most cases, unless you're drunk, or flee the scene, you can injure or kill a cyclist or pedestrian and do less jail time than you would for selling small amounts of marijuana. That being said, vulnerable users laws can be a double-edged sword so there a couple of key things to consider when crafting or advocating these types of laws.

The first is that you're essentially creating a new class of roadway users, "vulnerable users". Overall this is a good thing. A driver of an automobile can do significantly more harm and therefore, should have more responsibility, much in the same way we hold commercial truckers to higher standards of conduct than we do drivers of private automobiles. The downside of this is, that by creating a separate class of users with differing levels of responsibility, we can inadvertently lay the groundwork for giving different rights to different types of users. This is less of an issue with pedestrians because they are already a separate class of roadway users, i.e. they are not vehicles. With bicyclists, however, there has been a history of trying to get them banned from certain roadways, citing safety as a concern (i.e. it's for their own good). There have been attempts in a number of states as recently as 2009: http://www.kansascyclist.com/news/2009/08/proposals-to-ban-bicycles-in-colorado-and-iowa/

The second issue with vulnerable users laws is that you have to be both careful and specific in terms of how you define a "vulnerable user". Is a motorcyclist a vulnerable user? Are vulnerable users synonymous with non-motorized roadway users? With the proliferation of electric-assist bicyclists and neighborhood electric vehicles like golf carts there is, and will continue to be, an increasing variety of vehicles on the road. With the population aging, these types of vehicles will become more and more common as many older citizens may no longer be comfortable driving standard automobiles and switch to these small less powerful vehicles. This is already happening in a lot of retirement villages in the sunbelt. If a 20-year-old cyclist hits an 80-year-old driver of a golf car, who is the vulnerable user? Are they both vulnerable users?

The third thing to watch out for, or at least be aware of and prepared to address, is the fairness issue. One complaint I've heard a number of times is that vulnerable user laws can create legal rulings that are very counter-intuitive. The most commonly cited example goes like this: Drunk driver A hits and kills another motorist while drunk driver B hits and kills a cyclist. Under some vulnerable user laws, driver B would face a more serious penalty for his crime than driver A, even though both drivers committed the same act with the same end result. The punishment varies depending on the type of vehicle your victim happens to be driving.

That last thing to be be careful of is assigning too much blame to drivers in cases where cyclists or pedestrians may be overwhelmingly at fault. Penalties for drivers who hit and injure cyclists and pedestrians certainly need to be stiffer and more regularly enforced, but if penalties or the assignment of fault is draconian, or is perceived as genuinely unfair, the law may ultimately be ineffective and generate a backlash. Juries tend to be sympathetic to drivers because everyone on the jury has typically driven a car and can put themselves in the driver's shoes. They may or may not be able to relate as freely to the cyclist or the pedestrian.

So with all these issues, why have a vulnerable users law at all? Why should cyclists and pedestrians get special protection under the law? The simple answer is this: driving is a privilege, walking and biking are rights. In order to drive a car you have to have a driver's license issued to you by the state you live in. This license can be revoked by the state for any number of reasons, largely because reckless drivers can, and often do, inflict a tremendous amount of harm. People ought to have the freedom to choose how they want to get around, and should be able to do so knowing that they'll be adequately protected by the law.

3 comments:

  1. A thoughtful look at the issues. Thanks!

    I think it's important to remember that all humans are vulnerable. Many people die in horrific carnage despite being surrounded by steel and glass.

    I would like to see a stronger stance on traffic justice across the board. It is true that motorists who kill pedestrians and cyclists are getting away with barely a slap on the wrist, but motorists who kill motorists aren't exactly paying a hefty price either.

    Across the board, there is little accountability anymore, for the awesome responsibility of operating heavy vehicles at high speeds. Our licensing process is a joke (particularly in Florida, I'm looking for the DL vending machine, I know it's around here somewhere and it must be destroyed!). We cover the horror with euphemistic terms, like "accident," and we anthropomorphize the vehicles as if there was no responsible human in control.

    This dysfunction is much deeper than disrespect for pedestrians and bicyclists. It's an addiction-driven amnesia—a helpless shirking of personal responsibility—that has made our culture forget that traffic is made up of people driving vehicles and making decisions. Instead, we've mythologized it as a force of nature to which the bicycle driver or pedestrian is the one making the dangerous choice to expose him/herself.

    IMO, the vulnerable user concept is not only a construct of this paradigm, it feeds right into the dysfunction. That is why there is potential for backlash. If we attack the very notion that *roads* are dangerous, and put the responsibility for safety back on the individual, there will be no need to distinguish a vulnerable user from any other.

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  2. Excellent commentary and analysis. I particularly like the third scenario you bring up about the 2 drunk drivers. A simple solution would be to make sure that the penalty for killing either person to be equally strict and harsh. Careful and thoughtful legislation can take car of this.

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  3. The CT "Vulnerable User" bill (HB 5457) as passed the Transportation Committee is particularly bad; in addition to the faults you identify, under the proposed CT bill, the driver can be convicted even if the driver is operating according to the traffic rules and the "vulnerable user" is willfully disregarding the traffic rules. A very important consequence of this is that on conviction of the traffic offense this bill creates, the driver is now very vulnerable to a wrongful death suit -- EVEN FOR AN ACCIDENT THAT THE "VULNERABLE USER" CAUSED!

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