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Road Rights- The San Francisco Cyclist-Pedestrian Case, Part 2

By Bob Mionske

I’ve received many questions about the legal technicalities relating to the cyclist-pedestrian case described in last week’s Road Rights column. Here are some answers to the most commonly asked inquiries.

Q: What is the cyclist being charged with?
A: Felony vehicular manslaughter.

Q: This is the second bike-on-pedestrian fatality in San Francisco over the past year. Was the earlier fatality charged as a felony too?
A: No. The earlier fatality was prosecuted as a misdemeanor.

Q: So why is this case being prosecuted as a felony?
A: The District Attorney is alleging that the cyclist in this case (Chris Bucchere) was riding with gross negligence, and that led to the death of the pedestrian (Sutchi Hui). In the previous case, the cyclist (Randolph Ang) pleaded guilty to vehicular manslaughter, a misdemeanor. Gross negligence was not alleged in that case.

Q: What is gross negligence?
A: Gross negligence, or recklessness, means that the person knew or should have known that his or her behavior was likely to result in injury or death, but knowing this, did it anyway. It’s more serious than accidentally injuring or killing somebody because of failure to take ordinary care (that’s ordinary negligence), but it’s not quite as extreme as intentionally injuring or killing somebody.

Here’s an example: Suppose a motorist is driving down a country road, speeding a bit, and hits a cyclist that he didn’t see because he wasn’t paying complete attention to the road. That would be a case involving ordinary negligence. The driver should have been driving within the speed limit, and should have been paying full attention to the road, but wasn’t doing something that would likely be considered extreme behavior by a jury. That is why motorists often face no consequences when they injure or kill a cyclist: The motorist’s behavior was not “reckless.”

Now compare that to a motorist racing another motorist at high speed down a country road, losing control, and hitting a cyclist. That driver was intentionally speeding for the thrill of the race on a public road, and should have realized that there was a significant chance that somebody would be injured or killed. A jury would probably find that the driver was engaging in extreme (or reckless) behavior by exposing other people on the road to a significant chance of injury.

Q: The cyclist entered the intersection on a yellow light. That is not against the law, so why is he being charged with a felony?
A: The cyclist is not accused of breaking the law by entering the intersection on yellow. He’s accused of gross negligence leading up to and causing a traffic fatality.

As far as we know, the D.A.’s theory is that cyclist was tracking his ride on Strava in an attempt to beat his personal record on his ride home. The evidence that the D.A. has cited in support of his allegation of gross negligence includes eyewitness accounts of the cyclist blowing through multiple red lights and stop signs immediately prior to the fatal collision, violating the posted and basic speed law while entering the intersection, and making no effort to slow, stop, or change direction before entering a crosswalk full of pedestrians.

Q: But aren’t his actions at other intersections legally irrelevant to the fatality at this intersection?
A: The D.A. is arguing that when you look at all of the cyclist’s actions leading up to the fatal collision, there is a pattern of unlawful behavior that shows gross negligence (and evidence of a pattern of behavior is admissible at trial). Remember, gross negligence means that the person knew or should have known that the behavior was likely to result in injury or death, but he did it anyway. The D.A. is arguing that because the cyclist’s behavior was reckless, he committed a felony when he killed a pedestrian.

Q: Why weren’t the other pedestrian fatalities in the neighborhood prosecuted as felonies?
A: There were two other pedestrian fatalities in that neighborhood within the same time period. In one fatality, a bus driver was looking in his side mirror while making a turn, and didn’t see the pedestrian in the crosswalk (and the pedestrian didn’t see the approaching bus because she was texting). The other case involved a driver who was wearing a cast on his right foot when he hit a pedestrian. However, neither of those incidents appears to rise to the level of recklessness, which is why they were charged with misdemeanor vehicular manslaughter, rather than felony vehicular manslaughter.

Q: But felony charges are usually only filed when the driver is DUI, hits and runs, or intentionally hits the person. Why is this case a felony?
A: To make a felony charge stick, you typically have to prove hit-and-run, DUI, or recklessness. In this case, the D.A. is alleging recklessness. The D.A. reported that the investigation took as long as it did because his office tracked down and talked with 10 witnesses before deciding that they had the evidence to prove that the cyclist acted recklessly.

Felony charges are rare, which is one reason this case has attracted so much attention. In fact, I’m not even sure if there are any other cases out there where a cyclist was charged with felony vehicular manslaughter.

More commonly, traffic deaths are the result of ordinary negligence, rather than recklessness, and unfortunately, traffic deaths and injuries due to negligence are not taken as seriously by our society as they should be.

Research and assistance by Rick Bernardi, J.D.


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This article, The San Francisco Cyclist-Pedestrian Case, Part 2, was originally published on Bicycling on June 25, 2012.

Now read the fine print:
Bicycle and the Law, Bob MionskeBob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).
Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.
 
If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.
Important notice:
The information provided in the "Road Rights" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

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