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Tuesday, July 22 2014 @ 09:24 PM UTC
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Contributory Negligence

Bike LawsFrom the TheLegislative Wrap-Up

Maryland’s current common law doctrine of contributory negligence standard bars a plaintiff from receiving any damages for an injury if the plaintiff’s own negligence contributed in any way to the harm. Maryland is one of five jurisdictions, along with Virginia, Alabama, North Carolina, and the District of Columbia, that retains this doctrine. Forty-six states follow the doctrine of comparative negligence, under which a plaintiff’s recovery can be reduced if the plaintiff was partially at fault. The Maryland Judiciary recently began a study regarding the process and consequences of changing the Maryland standard from contributory negligence to comparative negligence through judicial action.

An emergency bill, The Maryland Contributory Negligence Act (HB 1129), codifies the contributory negligence standard so that it remains an affirmative defense that may be raised by a party being sued for damages for wrongful death, personal injury, or property damage.
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This is sort of the official summary of the Legislative Session so far. I find it a bit strange that this got coverage and our HB 363 “Manslaughter by Vehicle or Vessel – Criminal Negligence did not.
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Maryland Contributory Negligence Statute

Bike Lawsfrom Maryland Injury Lawyer Blog

I reported here last year that the Maryland Court of Appeals - or at least Judge Bell - is looking at whether the Maryland high court should adopt comparative negligence in Maryland. Republicans in the Maryland House of Delegates are trying to beat the court to the punch by introducing House Bill 1129 which would make contributory negligence codified Maryland law.

To my knowledge, I don't think any state in recent history has codified contributory negligence.

Take action: http://www.baltimorespokes.org/article.php?story=20110223135459843
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Action: Emergency Bill Contributory Negligence for defense of wrongful death or injury by at fault drivers

Bike LawsOr let me state the bill more simplistically. At fault drivers "need" a easy defense to get out of paying any damages at all.

Yes you are reading that right, people at fault in a traffic "accident" can get away with murder. And the sponsors of this bill want to see more people get away with murder.


Examples of why we don't like contributory negligence:

A Richmond, Virginia jury awards no damages to a 23 year-old pedestrian who was hit by an F-150 truck while walking on the sidewalk. The jury found the Plaintiff contributory negligent because she was singing while she was walking.
http://www.baltimorespokes.org/article.php?story=20110222101857474

Montgomery County Circuit Court awards no damages to a cyclist who hit a left turning truck that violated the cyclist's right-of-way. The cyclist was contributory negligent because they hit the back part of the truck.
http://www.baltimorespokes.org/article.php?story=20090726190123851


What we do support is comparative negligence which is basically if a damaged party is 1% negligent they lose 1% of the damages. This is vastly more fair and just then losing all damages under contributory negligence and is followed by 90% of the United States in one form or the other.

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House Bill 1129 states (in part):

(B) CONTRIBUTORY NEGLIGENCE SHALL REMAIN AN AFFIRMATIVE DEFENSE THAT MAY BE RAISED BY A PARTY AGAINST WHOM A CLAIM IS MADE FOR DAMAGES FOR WRONGFUL DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE.
...
http://mlis.state.md.us/2011rs/bills/hb/hb1129f.pdf

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There is little doubt in my mind that this bill is the result of issues raised in this story: http://www.baltimorespokes.org/article.php?story=2011011613561368

There is a group behind this that is difficult to find out just who they are but with some detective work here http://www.baltimoreinjurylawyerblog.com/2009/03/whats_a_frivolous_lawsuit.html we find a former political lobbyist (representing big corporate interest?), a doctor sued for medical malpractice, the owner of a failed local insurance company, an attorney in Annapolis, an owner of a national chain of camp resorts and a owner of a risk management for business. And they call themselves, get this, Maryland Citizens Against Lawsuit Abuse. The link in this paragraph has more info on the absurdity of that title and I quote from that article "Personally, I would be suspicious of any group that seems to conceal its leaders and true agenda."

There is also a battle of sorts between the courts and the legislature going on here. Judge Bell wants a study that I will summarize as "What are the best legal practices in awarding damages? And can the court adopt such best practices as a rule?" (Implied without the legislature taking action.) And then there is this statement attributed to Judge Bell (if I am reading it right) "Maryland's contributory negligence rule is a common law rule. Arguably, the legislature's failure to act is not approbation of contributory negligence." So to summarize the sponsors of this bill are afraid that contributory negligence will not be found to be the "best practice" by the study and want to prevent the court from taking any action based on that study. Personally I find that rather damning of the sponsors of the bill.

I am appalled at the number of Delegates that have signed on in support of this and how few have supported House Bill 363 - “Manslaughter by Vehicle or Vessel – Criminal Negligence. If indeed our legislature is impressed by Citizens Against something and grassroots motivation then we need to send a clear message "We are Maryland citizens and not big corporate interests. We are truly grassroots and our only "profit" is seeing the all Maryland citizens being protected by fair and just laws laws.

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*** Take action ***
And write your Representative to oppose House Bill 1129 - Maryland Contributory Negligence Act , especially if they are one of the sponsors:
Delegates Kramer, Bates, Beitzel, Bromwell, Carter, Costa, Dwyer, George, Jameson, Kach, K. Kelly, Kipke, McConkey, W. Miller, Norman, O'Donnell, Vitale, Weir, and Wood

To find your Representative: http://mdelect.net/electedofficials/

Is it really too much to ask that Maryland follow what the rest of America finds fair and reasonable for at fault drivers to pay for the damages that they cause?

All this bill does is protect at fault drivers from paying damages to people they kill or injure.

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Additional argument:

It has been said that contributory negligence is intended to discourage negligent behavior that causes accidents by denying recovery to those who fail to use proper care for their own safety.

Which is really an unfair summary of how contributory negligence works. But I ask what then is the deterrent to unlawful behavior that is over 51% the causes of the accident in the first place? Seriously, what's more important to discourage, driving your pickup on the sidewalk or singing while walking? And again, what's more important to discourage, trucks failing to yield the right-of-way or cyclists that decide they rather hit the back of the truck over getting run over by the front of the truck?
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Take action to Support HB 363- Help make Maryland roads safer!

Bike LawsTake Action! 
Drivers who kill cyclists often face little or no penalty for their actions in part due to a gap in current Maryland law. HB 363 “Manslaughter by Vehicle or Vessel – Criminal Negligence: provides a misdemeanor option for those who cause fatalities by driving in a criminally negligent manner. If found guilty, motorists will be subject to imprisonment not to exceed 3 years and/or a fine not to exceed $5000.
 
Take action to support safer roads in Maryland. Urge the Maryland House Judiciary Committee to vote in favor of HB 363.
Take Action! 
[B' Spokes: Just to note this alert came to us via League of American Bicyclists. I am seeing more bicycling advocacy groups working together rather then sticking to their specialty areas, this is really cool!]
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There ought to be a law - about bicycle laws being available and accurate

Bike LawsUpdated update: MVA's site is coming along nicely: http://www.mva.maryland.gov/Driver-Safety/Bicycle/default.htm
There is more I would like to do but I have to involve the "committee" which is going to be hard in the middle of the legislative season, so stay tuned, more to come.

Unfortunately somehow the ball got dropped on changing the law summary on SHA's site. After a bit of effort hopefully the right person has the info and motivation to update the laws. In the process we found another link to be fixed: http://www.marylandroads.com/oots/Appendix%20C%20-%20PedBikeCode.pdf
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Update: Conversation has begun and I will let everyone know the outcome when it happens. Thanks to everyone who took time to write and getting the State to take more seriously the dissemination of bike laws and that they be correctly stated.

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§ 21-1212. Copies or summaries of laws and regulations.
The Administration shall publish copies or summaries of the regulations and laws of this State that regulate the operation of bicycles ...

This started off as a nice law but a lot has changed since 1986. I would hope that it's implied those copy of summaries should be current and not to mention accurate.

I remember Bob Moore's (may he rest in peace) testimony in Annapolis about "the quaint antiquated notion" of requiring bikes to have a bell and that was in 2006 yet the summary as provided by SHA has that we are still required by law to have a bell. Not to mention our resent removal of mandatory shoulder use, this really needs to be updated.
http://www.sha.maryland.gov/OPPEN/acom_bike_laws1.pdf

I have written to SHA's bike/ped coordinator before on this subject but I guess they keep switching who is in charge of that position so this has yet to be done but 4 years out of date is really too much and should be corrected.

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Insurance Bad Faith Average Verdicts

Bike LawsI'll file this under "I didn't know that." Maryland does not allow for punitive damages in insurance bad faith claims but not so for the rest of the country where the average bad faith punitive damage award was $6,951,219; the median award was $1,000,000.

I have no idea if this is effecting cyclists or not but some insurance companies are messing up elsewhere and getting penalized then the odds are this is happening here as well.

So in talking about manslaughter by vehicle, contributory negligence, police/courts anti-cycling bias and then now this. Just seems like opportunities to stick it to the little guy abound in Maryland.
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Maryland Citizens Against Lawsuit Abuse Editorial

Bike Laws[B' Spokes: There is no doubt that contributory negligence is an obstacle that prevents bicyclists and pedestrains from collecting damages resulting from an at fault driver like in this story: Bicyclist Loses Lawsuit Against Truck Driver And of course one of the reasons why a change is resisted because insurance companies will now have to pay out more to injured parties.

It has been said that contributory negligence is intended to discourage negligent behavior that causes accidents by denying recovery to those who fail to use proper care for their own safety.

That is such a dishonest statement when applied to vulnerable road users. Comparative negligence also denies full recovery to those who fail to use proper care for their own safety but proportionate to each party that failed to exercise proper care. Instead we have a system that looks at the victim and asks if they did everything 100% correctly they could have done to prevent this crash, if not then no recovery. Why should the victim be held to a higher standard then the perpetrator?

In a State that has some of the worst driver's in the country it makes no sense to me to try and keep their insurance rates low on the backs of their victims.

After the fold a couple of links to past fiscal policy notes that give a hint why this has not been changed yet.]

from Maryland Injury Lawyer Blog:

Todd Lamb, executive director of Maryland Citizens Against Lawsuit Abuse, and Ellen Valentino write an editorial in the Maryland Daily Record on the apocalypse that would occur if Maryland joined 90% of states in this country and adopted a comparative negligence standard. Essentially, the authors' argument makes two points: (1) comparative negligence should not be adopted by anyone other than the Maryland legislature and (2) comparative negligence would cause great economic hardship for Maryland.

I understand the authors' point that any change in the standard should come from the legislature. I think the majority of the Maryland Court of Appeals will agree with the authors on this. On the other hand, as Judge Bell pointed out in commissioning a study on contributory/comparative negligence, Maryland's contributory negligence rule is a common law rule. Arguably, the legislature's failure to act is not approbation of contributory negligence. Can the court never change a rule because the legislature has not changed it for them? But I'm getting too far afield... I can see arguments on both sides of this issue.

The idea that Maryland's economy is going to suffer from comparative negligence is just plain silly. Maryland, Virginia, Washington D.C., Alabama, and North Carolina are the only jurisdictions in the country that have retained contributory negligence. Has any serious economist - which I define for these purposes as someone who has taken an introductory economics course - suggested that these economies are meaningfully stronger and have lower inflation because of contributory negligence? Please.
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A hike in the state's gas tax?

Bike LawsSenate President Thomas V. Mike Miller, who has pushed for a hike in the state's gas tax.

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RE: Not Blocking or Parking in Dedicated Bike Lanes (reply) (Still not supportive)

Bike LawsFollow up to Not Blocking or Parking in Dedicated Bike Lanes

By Michael Jackson  

Thanks for sharing your concerns with the intended recommendation to MBPAC not to support the proposal to prohibit parking in bike lanes.  I have reviewed your concerns and offer the following responses.

 

First, this is to say that there is sympathy for the results that are intended; an elimination or at least reduction of motorists blocking bike lanes by parking in them. In addition to this result it is my understanding that a side benefit is to increase additional respect for bicyclists by not encroaching on marked bike lanes by parked vehicles. There is no objection to these aims. The objection is with the strategy being proposed.

 

As I mentioned at the legislative discussion passing new legislation is a useful tool but is not always the most appropriate means of getting something accomplished. In this case the legislative proposal has the following disadvantages:

 

·         It is redundant as it adds a new law where the same result can be achieved better by using existing laws.

 

·         In the event this proposal  is enacted the average citizen is unlikely to be aware of such a law in the absence of signage, which you feel would be unneeded, let alone visitors from other jurisdictions driving within Maryland.

 

·         The concept as currently proposed would eliminate the possibility of part-time bike lanes, successfully used in other places, where bike lanes are in effective at certain times of day such as rush hours, but parking is allowed in other times of the day.

 

·         It takes time and effort away from the pursuit of other legislative proposals that are also being proposed.

 

Redundancy

 

Annotated Code of Maryland Transportation Volume, Section 21-1003 (j) already provides a remedy to parking in bike lanes. It reads, Places where stopping is prohibited by signs. – A person may not stop, stand, or park a vehicle at any place where stopping is prohibited by an official sign”. In response to your concern about people double parking and blocking bike lanes striped next to on-street parking State law already prohibits this practice.

 

Section 21-1003 (r) Standing or parking vehicles alongside of other stopped or parked vehicles- A person may not stand or park a vehicle on the roadway side of any other vehicle that is stopped or parked at the edge or curb of a highway”. Therefore the Baltimore Police Department has grounds to ticket double parked vehicles that block the Roland Avenue bike lanes.

 

Awareness

 

The Manual of Uniform Traffic Control Devices, 2009 edition, states in Section 5B.01 that “The purpose of a regulatory sign is to inform highway users of traffic laws or regulations, and to indicate the applicability of legal requirements that would not otherwise be apparent.” If the public is parking in bike lanes and desire exists for people not do that then signs placed where parking in bike lanes is a problem is the established and most cost effective manner to communicate that information not only to the public but also to law enforcement personnel charged with ticketing violators.  

 

Part Time Bike Lanes

 

It has been my experience in drawing up engineering plans for bike lanes that often there is a political conflict over parking removal. In some places where bike lanes are desirable there isn’t sufficient political support to overcome opposition to losing existing on-street parking where there isn’t room for both. However demand for parking varies depending on time of day and day of week. Examples include less demand during rush hours and more demand for parking during religious services at churches, temples, etc. Bike lanes/parking can be designated for certain hours. The proposal as written would eliminate that type of flexibility.

 

Dilution of 2011 Legislative Advocacy

 

Jim Swift, Patrick Sheehan and I are unlikely to be the only ones to question the need for a statewide ban on parking in bike lanes proposal. It is foreseeable that questions will be raised with all of the legislative proposals being considered this year.  Based on the above discussion why devote time and effort trying to get this proposal passed when existing means are available to achieve the desired outcomes. Efforts made in advocating this proposal could, in my opinion, be better spent on other legislative proposals.

 

The following is to reply to your other comments.

 

You said:

 

“But isn't the same argument valid for permitting parking in a bike lane? Shouldn't come down to what's the general accepted use and sign the alternate use as it would be cheaper? After all a bike lane is for exclusive or priority use by bicycles.”

 

A general principle of traffic law is everything is permitted unless it is prohibited. While there are exceptions, these exceptions simply prove the general principle. Legally speaking in Maryland a bike lane is defined as “any portion of a roadway or shoulder designated for single directional bicycle flow.” Even by your definition of bike lane priority use means that bike lanes are not always exclusively for bicyclists. This proposal goes against the general principle of traffic law and because there are existing ways of achieving the desired results, the proposal isn’t justifiable.

 

You said:

 

The counter argument was but "No Parking" signs are cheap, something like $40 each (assuming we already have a pole to hang them on, otherwise it is more like $200 a piece including labor.) Well lets look at that. By my estimate Baltimore Metro (just a small part of the State) needs minimally about 300 miles of bike lanes to truly have a bicycles as transportation network just in the urban designated areas. So let's do the math: 2 signs per block * 2 sides of the road * 10 blocks per mile (in the city that's a higher number) * 300 miles * $40 a sign = $480,000. (Can I round that up to a half a million?) Not to mention under the State's current policies they will not allow Federal funding for signs. Even SHA gave up marking shoulders as bike lanes because of the expense of signs.”

 

My first response is that signing is the most cost effective manner of relaying parking prohibition information to citizens and law enforcement officers, as well as visitors from out of state. Signing is the status quo solution. The bicycling community and the legislature did not have a problem with SHA spending money urging motorists to give bicyclists a minimum of 3 feet when passing (see attachment).  This is less cost effective than signing but in the case of publicizing 3 foot passing minimums signing is not a reasonable strategy. The point is that less cost effective ways of promoting public bicycling awareness has been supported by the bicycling community. Therefore objecting to spending money on signs seems inconsistent with the consensus of the bike community to spend money on bicycling when needed.

 

My second response is that even accepting a need for 300 miles of bike lanes in the Baltimore metropolitan area, this is not going to happen overnight. Therefore a half million dollar cost of signs would be spread out over the many years that it would take to achieve the goal of 300 miles of bike lanes throughout multiple jurisdictions, again making this affordable. Actually since bike lanes either have to marked by pavement markings or signs, pavement markings are ultimately more expensive than signs because pavement markings have to be replaced sooner. If you are going to have bike lanes, bike lane signs are expected and where you need to install no parking signs the combination No parking/bike lane sign kills two birds with one stone (see attachment).

 

Finally SHA’s rationale concluding that the costs of converting shoulders into bike lanes was financially infeasible was not supported by the requirements of the Manual of Uniform Traffic Control Devices. The costs they projected was unnecessary in my opinion. I had experience with such shoulder into bike lane conversions at reasonable costs versus the exorbitant cost projections SHA made, during my stint as the City of San Diego’s Bicycle Coordinator. Unfortunately SHA had not had similar experiences of bike lane installation at the time of this discussion.  

 

You stated:

 

“My argument I presented at the meeting was: what about bike lanes next to parking like in Roland Park (Starbucks), you can't sign "No Parking" there. I was countered with: but isn't double parking illegal? Which I countered with: but police need due cause to give tickets, if the cars are not blocking the car travel lane is there due cause to give a ticket without this law? “

Section 21-1003 (r) Standing or parking vehicles alongside of other stopped or parked vehicles- A person may not stand or park a vehicle on the roadway side of any other vehicle that is stopped or parked at the edge or curb of a highway”. Therefore the Baltimore Police Department has grounds to ticket double parked vehicles that block the Roland Avenue bike lanes.

 

You stated:

 

I feel very strongly that the facility that accommodates both cyclists and parking is a shoulder not a bike lane. Once it is designated a bike lane there should be no standing cars (unless to make a right turn.) That is best engineering practices IMHO and it would be very helpful if MBPAC would support this legislation.

 

I too,  prefer bike lanes next to parking to have solid striping on both sides of the bike lane for better designation. However bike lanes can be created with just striping on the moving motor vehicle side, despite your opinion.  I don’t think this proposal would outlaw bike lanes with striping just on one side and don’t think such a provision is needed given the existing dearth of such facilities.

 

Finally you said

 

So I am asking those that agree that parking should be prohibited in bike lanes to write to Michael Jackson mjackson3@mdot.state.md.us the State Director of Bicycle and Pedestrian Access and Jim Swift jks36@verizon.net the Chairman of the Maryland Bicycle and Pedestrian Advisory Committee. (MBPAC) And please be polite! these folks are great supporters of our cause but all engineers are subject to "Oh, but I got an engineering fix for that problem." I have fallen victim to that kind of thinking myself from time to time. So please thank them for their support to date.

 

I want to thank you very much for this appeal for civility. It is greatly appreciated. In this case our opposition to this proposal is that a new legal solution isn’t needed when an existing legal solution already exists that will more effectively communicate to law enforcement and the public rules about not blocking bike lanes.

 

Thanks,

 

Michael

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The flaw in our our proposed bill - it does not treat damaging a person the same as damaging a car

Bike LawsIn this story by Michael Dresser he states:

"There's a lot of merit to the idea of creating an enhanced version of negligent driving to cover cases that are grossly negligent but not willful. But the proposal being advanced by the advocates carries the flaw of many such laws: It punishes the result and not the conduct. It would make more sense to create a misdemeanor charge of "grossly negligent driving contributing to a crash" that could be applied whether or not a victim died. One year should suffice as a penalty; three strikes me as overkill unless there was actual intent to cause harm."

Since when has the law turned a blind eye to the extent of damage done? Since when has the law been restricted to treating bodily harm the same as property damage?

Speeding fines increase as the chance of more severe damage goes up (the faster you go the higher the fines.) Increase fines in work and school zones, both are related to the increase potential of harming people and not just "the cause."

Lets take an extreme example: someone takes a baseball bat and hits the corner of your brick house to do damage and all they end up doing is breaking their bat. Now if the baseball bat was applied to a person the charge should be exactly the same as above? After all the intent is the same.

"Actual intent to cause harm" for negligence??? Seriously look up the concept we are talking about. http://en.wikipedia.org/wiki/Criminal_negligence

If someone is negligent and ends up wrapping their car around a telephone pole, that is sort of self serving justice, the telephone pole can be replaced but people cannot be replaced or fixed up in the same way as a telephone pole.

***Edit***: I should point out that we do have "grossly negligent driving contributing to a crash" that 's basically DUI, as very few other things will qualify for "grossly negligent ". Causing a crash or killing people while under the influence may help to get the maximum penalties for DUI but you could get maximum penalties without causing a crash or hurting someone. There is nothing "extra" legally required for DUI for crashing or killing.

Michael concludes with a red herring that bicyclists are exempt from this purposed new law and somehow one death a year nation wide (if that on average) is more tragic then 35,000 to 43,000 deaths a year by automobiles and the fact that the automobile is the leading cause of death of our next generation of Marylanders (and that is mostly kids INSIDE the automobile.) Sorry Michael but bicycles are vehicles by Maryland law and this will apply to cyclists as well as drivers. I am very disappointed that Michael is perpetuating the myth that bicyclists conciser themselves above the law when all we are asking for is that killing a person whether in a car or not should not be looked at as just collateral damage of a system that puts more emphasis on fast travel over safe travel. IMHO this is a very shameful detractor put forth by Michael and has no bases in the facts.

If people could write Michael in a less inflammatory manner then what I have done here, please do so.
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