Vehicle Operators Presumed Negligent to Promote Bicyclist Safety?

BACKGROUND ON THE QUESTION: EMLVO recently received a “What do you think?” query from the Washington Defense Trial Lawyers and a link to a news article[1] quoting Bob Anderton, a Seattle attorney and advocate for bicyclists.

The question presented relates to a proposed shifting of the usual burden of proof in Seattle civil matters involving parties from vehicle-bicycle accidents. Ordinarily, the plaintiff (i.e. the injured bicyclist) has the burden of proving that the other party is liable. The proposed change would presume fault of the vehicle operator.

Mr. Anderton is quoted in the King 5 piece as saying, "The primary reason why I would like this to happen is to prevent the collisions in the first place." I don't believe the stated purpose would be served any more than the death penalty prevents homicides. In a very over-simplified sense, driver awareness (or lack thereof) combined with bicyclist visibility (or lack thereof) are the real issues and these are not addressed by either party’s respective burden of proof.

Part of the justification for this proposed change is to follow the European model. I can’t explain the apparent self-loathing in the American psyche or the general favor toward all things EU but we have effectively resisted adopting the metric system and the English Rule for shifting attorneys’ fees to a loser-pays model and we should resist this change too absent empirical evidence that the law changes driver behavior around bicyclists. In that respect, I agree with Mr. Anderton that the issue may be worth additional investigation. Like other driver-related issues (think seatbelt use, DUI, texting), public education combined with legal consequences may net the desired results – fewer vehicle-bicycle accidents.

BUT WHAT IS THE REAL OBJECTIVE:  If the real goal is to provide an expedient payment method for bicyclist’s medical bills (or other expenses), avenues of approach already exist which don’t require tort reform. The injured rider can present a claim for Personal Injury Protection (PIP) coverage under the driver’s automobile policy, or if no coverage exists with the at-fault driver[2], then the rider can recover under his own PIP or Uninsured Motorist Bodily Injury (UMBI) coverage. Subject to policy limits, PIP provides no-fault coverage for medical treatment (not pain and suffering), funeral expenses, income continuation benefits, and loss of services damages incurred by injured passengers, pedestrians, and bicyclists. Because PIP is a no-fault coverage, it can be paid immediately as medical treatment is incurred unlike the liability-based bodily injury (BI) model which is not paid (if at all) until treatment ends and the case is settled or tried which could be many years from the actual date of injury. The foregoing does obviously presume that the bicyclist or vehicle involved has the appropriate coverage. Perhaps this presumes too much.

Another possible option involving the legislature and potentially finding favor with the insurance lobby may be mandating PIP coverage at certain levels thereby extending coverage to bicyclists (without vehicles of their own) on a no-fault basis. Washington law already requires that vehicle operators carry minimum liability insurance coverage or a bond (think BI model referenced above). RCW 46.29.090. PIP coverage is currently waiveable under Washington law and must be offered at certain state minimums (e.g., $10,000.00 for medical bills). RCW 48.22.095. I have no idea how many Washington automobile policy holders actually choose to waive this coverage but the legislature could mandate coverage at the current level or higher minimum limits. Insurance company actuaries can do what they do and assess statistical claim costs related to vehicle-bicycle incidents and set premiums accordingly. The insurance companies could easily support this kind of legislative mandate in pursuit of additional premiums. The reality may be, however, that insurance premiums increase irrespective of the path chosen. The obvious downside to this approach is that it only applies to automobile policies issued in Washington. Bicyclists suing non-resident drivers would automatically default to their current evidentiary burden when pursuing damages from the driver (or the driver's insurer).

However, even a cursory review of Mr. Anderton’s online publications at www.washingtonbikelaw.com reveals that he has stated his position differently in the past in ways that may more accurately reflect his true motivations. In a 2009 King County Bar Association article[3] and in a 2011 City of Seattle Road Safety Summit[4], he is reported as favoring not just presumptive liability but strict liability against drivers who hit bicyclists. Black’s Law Dictionary defines “strict liability” as: "Liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe. • Strict liability most often applies either to ultrahazardous activities or in products-liability cases. — Also termed absolute liability; liability without fault."

Also in the KCBA article, Mr. Anderton suggests that revoking “one’s license after killing someone with a motor vehicle would seem to be a reasonable approach.” I agree with Mr. Anderton in cases where criminal conduct can be proven (i.e. vehicular homicide) but certainly not in instances involving mere negligence or even a fault-free driver.

Perhaps Mr. Anderton championing presumptive liability is just the first step in a greater goal. Ultimately, I don’t share his belief that criminalizing negligent behavior is the answer and I don’t believe that presumptive or strict liability will make the roads any safer for Washington bicyclists.

Disclaimer: The views and opinions expressed in this article are those of the author only and do not necessarily reflect the position of Etter, McMahon, Lamberson, Van Wert & Oreskovich, P.C.. Accessing this website and the content above does not create an attorney-client relationship and does not constitute legal advice for any particular situation.