Wednesday, January 25, 2012

Bill to require drivers to exercise due care defeated in VA House subcommittee

The Virginia House Transportation subcommittee 2 today voted to pass by indefinitely, in other words to kill, a bill that would have drivers of motor vehicles exercising due care to avoid crashing into a pedestrian or bicyclist. Here's the full text of the bill:
§ 46.2-923.1. Drivers to exercise due care.

Notwithstanding the other provisions of this chapter, every driver of a motor vehicle shall exercise due care to avoid colliding with any pedestrian or the operator of a human-powered vehicle and shall give an audible signal when necessary. Every driver shall exercise proper precaution upon observing any child or any obviously confused, incapacitated, or intoxicated person on the highways.
Delegate Barbara Comstock (R-McLean) cast the deciding vote to kill this bill. Unfortunately we have not been watching the session closely and did not ask cyclists to send messages to members of the subcommittee. This is an important bill that would help protect cyclists by requiring motorists to exercise due care to avoid hitting them. Four out of the 7 members of the committee, all Republicans, voted against the bill. We wrote the following note to Delegate Comstock:
Dear Delegate Comstock,

I was very disappointed to hear that you voted to pass by indefinitely the bill (HB 784 Exercise due care; requires drivers to avoid colliding with pedestrian) that would help protect pedestrians, bicyclists, children, and incapacitated pedestrians. It's hard to believe that 4 of the 7 members of House Transportation subcommittee 2 voted against this bill. It doesn't seem to be too much to ask motorists to exercise due care to avoid colliding with a pedestrian or a bicyclist. Please reconsider your vote and have this bill heard by the full Transportation Committee and House as a whole.


Bruce Wright
See a summary of what Virginia Bicycling Federation considers bicycling-related bills in the 2012 General Assembly. They are also posting regular Legislative Updates.

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If that is the full text of the bill, then I'm just a little confused about what the perceived benefit of the bill is?

Adding code under the already-present §46.2-923 (How and where pedestrians to cross highways) is not going to make anything safer for us cyclists. If anything, fight to improve the language of §46.2-839, which is one of several existing clauses that mandates exercising of due care.

As an advocate for sound legislation that improves safety and quality of life for cyclists, I think it's important to take a good look at any and all legislation I voice an opinion on. If this proposed legislation passed, it would be an empty and meaningless win.

Best to save our voices for meaningful legislation, lest the legislators grow accustomed to ignoring us for being loud about the stuff that doesn't matter.
According to a research report sponsored by the Virginia Transportation Research Council, "Safe Travel for Virginia’s Non-Motorized Road Users: A Comprehensive Review of Pedestrian and Bicycle Laws in Virginia and the United States," the Uniform Vehicle Code contains this provision but it is not in the Code of Virginia. I've been told that Virginia is one of only 5 states without this provision. The report explains why the authors recommend that the code be adopted:

"Although both drivers and pedestrians have a common law duty to use due care, the provision as a whole would be strengthened by a statutorily enumerated duty to use due care. When assessing liability, a “due care” provision makes it clear that a driver cannot avoid liability simply because he or she had the right of way. Pedestrians are admonished not to “carelessly or
maliciously interfere with the orderly passage of vehicles, not to “enter or cross an intersection in disregard of approaching traffic, and not to “step into a highway . . . at any point between intersections where [their] presence would be obscured from the vision of drivers, yet drivers are not cautioned to use reasonable care not to strike a pedestrian. Considering that in an accident, the pedestrian is likely to suffer the greatest injury, it makes sense to caution drivers to use due care all the time, not only when “entering, crossing, or turning at intersections." See page 54 of the report.

I think the provision would make a difference. In Europe motorists are required by law to be more careful when driving around bicyclists and pedestrians. Passing the proposed bill would be a step in the right direction.
@Mike: 46.2-839 does not really require due care. Realistically, the main benefit of explicitly requiring due care and in particular looking out for careless people, is to ensure that negligent drivers are not absolved from liability when te cyclist is contributorily negligent before the driver's final negligent act. This all gets a bit obtuse, but basically, if both cyclist and driver are negligent at the same time, or if cyclist was negligent and then driver was negligent and hurts cyclists, the cyclist can not recover. But if driver is negligent, and cyclist is negligent, and then driver is negligent a second time, causing accident, cyclist can recover.

So for example, if the driver rear-ends a cyclist perhaps the cyclust was 1% at fault for riding along the fog line, so no liability. But if the driver first failed to observe traffic, and then later rams the cyclist, the cyclist can recover under the last chance rule.

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