Around 10 years ago, I was biking on Bancroft Parkway, keeping a safe following distance. The pickup truck ahead of me threw his vehicle in reverse and backed up a number of parking spaces. Because I stopped when he stopped, there was a curb to my left and parked cars to my right, there was little I could do. I was able to back up far enough so that he hit my bike and not me, although he knocked both it and me to the ground. He came flying out of his car repeating over and over, “I didn’t see you”. It didn’t matter. In spite of his protests, he got a ticket because the operator of a motor vehicle is required to see. Not seeing or being able to see when another is lawfully in the right of way is negligence, pure and simple.
Over the years, Delaware has passed laws that attempt to hold motorists more accountable for their actions, removing the burden of proof that required intent. Before the Warren Pritchett Act was signed into law in 2003, a motorist whose negligence caused the death of another was frequently charged with nothing more than a simple traffic offense, unless that motorist was intoxicated or intended to cause injury. Delaware’s “Vulnerable Users” law, passed in 2010, establishes criminal penalties for motorists who cause serious injury to a vulnerable user (such as a cyclist or pedestrian) who is lawfully in the right of way. This law implicitly acknowledges that the operator of a motor vehicle has an added responsibility towards those with less protection who are by definition less likely to cause damage to others. HB174, passed in 2011, strengthens criminal penalties for vehicular assault and homicide, and establishes a new crime, Vehicular Assault in the Third Degree, to cover situations where an individual causes injury to another person as a result of criminally negligent driving.
How does all of this impact cyclists (and pedestrians) and relate to SMIDSY? If a cyclist is lawfully on the roadway when hit–meaning that he or she was not in violation of the law, then the motorist would generally be presumed to be at fault. It’s the same as if you were driving a car and were struck from behind. The driver that hit you would have to prove that you were negligent in some way so that he/she was unable to avoid a collision. The concept of “last best chance” to avoid a crash also impacts who is considered to be at fault. This doesn’t always place the burden of proof squarely on the shoulders of the motorist, but it does help to provide parity. In a sense, if the laws are being applied and enforced correctly, SMIDSY (“Sorry Mate I Didn’t See You”) is clearly negligence and is not a viable defense, assuming the cyclist or pedestrian was lawfully on the roadway (for example, crossing in a crosswalk or biking along the right side of the road, appropriately visible, as opposed to biking against traffic in the dark with no lights or reflectors while wearing dark clothing). Even without the enhanced laws, it has always been a good part a matter of enforcement.
How would a law that specifically addresses SMIDSY, and that always places the burden of proof on the motorist, be beneficial? In many cases, the cyclist or pedestrian is injured and is not in a position to report what happened while the driver is fully capable. When there are no witnesses, the police officer may take the driver’s word, even though in a number of cases, the motorist will rationalize or even lie to protect him or herself. A lack of time, resources and/or knowledge on the part of the police officer may result in an insufficient investigation of these crimes. Unfortunately, there is no consistent and standardized training for police officers in Delaware (although I can’t speak for all jurisdictions) regarding matters related to bicycling. Laws pertaining to bicycles are not routinely covered in the State Police Academy, for example. And unfortunately, while there are certainly a number of wonderful and conscientious police officers who know the law, there are still too many officers who consider cyclists and pedestrians to be a nuisance and believe that they don’t belong on our roads. These officers tend to sympathize with the motorist.
That said, there could certainly be drawbacks to a “SMIDSY law”. I’m not an attorney so I don’t know the legal ramifications, but it seems to me that one serious drawback involves the number of incompetent and reckless cyclists and pedestrians using our roadways. For example, a week or two ago while walking to work in Wilmington after dropping my bike off at The Bike Boutique, I saw a man dart quickly across an intersection against the light. Fortunately, the approaching motorist was paying attention, had good reflexes and was going slowly enough to stop. What if, however, the pedestrian had dashed out half a second later? He would have been hit in spite of the driver’s best efforts. What to do, in that case, if there had been no witnesses?
In conclusion, I believe that we need to address weaknesses in enforcement and education that involve sharing our roads. Changing attitudes is the proverbial elephant in the corner. I also believe that we need to continue to improve and update our laws. But we must do so with care. Any bill that addresses SMIDSY will need to be well thought out.
Amy Wilburn is the chair of the Delaware Bicycle Council and the 2011 Delaware Bicycle Advocate of the Year.