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Tuesday, September 02 2014 @ 01:49 AM UTC
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MADD not impressed by Vallario drunk-driving bill

Bike Lawsfrom Getting There by Michael Dresser

MADD supports legislation that would make installation of such devices mandatory for all those convicted on driving under the influence. Such a bill passed thhe Senate last year only to die in the Judiciary Committee when Vallario declined to bring it up for a vote.
Cash said she had at first been encouraged when she heard Vallario was proposing his own bill. But once interlock proponents read the full bill, they realized there was nothing mandatory about it, she said.

MADD supports a bill called the Drunk Driving Elimination Act, sponsored in the Senate by Sen. Jamie Raskin and in the House by Del. Benjamin F. Kramer, both Montgomery County Democrats.
The Vallario bill would require drivers who are found to have a blood-alcohol content of 0.15 percent or more -- or those who refuse an alcohol test -- to enter an ignition interlock program in order to avert a driver's license suspension. But Cash said that is no more than drivers are permitted to do now, adding that many drivers simply accept the suspension but continue driving anyway.

Vallario's role is crucial because as chairman he can prevent any bill he opposes from getting a vote in committee. In practical terms only the speaker, who appoints committee chairs, has the authority to tell him to bring a bill to a vote.
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Auto manslaughter bill draws emotional testimony

Bike Lawsfrom Getting There by Michael Dresser
Widows and parents of Marylanders who were killed on the state’s roads pleaded with state lawmakers yesterday to give the victims of future traffic crashes a measure of justice they believe was denied their family members under the state’s difficult standard for holding drivers criminally accountable for fatalities.

In an emotionally charged hearing before the House Judiciary Committee, survivors of crash victims urged passage of a bill that would create an intermediate offense between traffic charges a defendant can pay be mail and a full-blown prosecution for felony manslaughter.

The bill under consideration would create a misdemeanor offense known as “manslaughter by vehicle or vessel – criminal negligence” – with a potential penalty of three years in prison and a $5,000 fine.

Though the support from more than 20 witnesses was virtually unanimous, the bill’s sponsor was far from optimistic about its prospects. He noted that for many years virtually identical bills have been brought before the committee only to die without a vote in the drawer of Chairman Joseph F. Vallario Jr.

That history brought the most dramatic moment of the hearing as Ed Kohls, a Reisterstown man who lost his 15-year-old son Connor in a crash that resulted in a $1,200 fine for the reckless driver who killed him, expressed his anger directly to an impassive Vallario, a Prince George’s County Democrat.

“We are furious that this bill has not been allowed to come to a vote,” Kohls said. “It seems that you are telling us that Connor’s life is worth noting more than $1,200.”

Kohls was joined in supporting the bill by grieving survivors including Weida Stoecker, a northern Baltimore County woman whose husband was killed by a negligent 17-year-old driver in 2007, and Lori Moser, widow of a State Highway Administration worker whose husband was killed at a work zone near Fredrick that same year.

The drivers found to be at fault in both cases resolved their cases by paying traffic fines.

Also testifying were Tamara Bensky of Owings Mills and Kenniss Henry of Prince Georges County, whose husband and daughter respectively were killed by motorists while bicycling.

Bensky choked back tears as she told lawmakers about her final, routine goodbye to her husband, Larry Bensky, last April 6, the day he was hit and killed while bicycling along Butler Road in Baltimore County.

"Never in a million years did I think I would end that day as a widow -- a mother alone with two little girls," she said. Bensky told the panel the driver of the vehicle that killed her husband paid a fine of $507.50 for traffic charges and received three points.

Also supporting the bill are prosecutors, bicyclists’ advocates and AAA Mid-Atlantic.

The challenge for lawmakers has been to find a formulation that gives prosecutors a tool to go after drivers whose driving lapses are more serious than typical traffic offenses but that do not rise to the level of “wanton and willful disregard for human life” – a standard that courts have restricted to cases involving drunk driving or extreme speeding.

“This is an impossibly high standard to meet in many prosecutions,” said Del. Luiz R. S. Simmons, the bill’s lead sponsor and a Montgomery County Democrat.

Simmons said his legislation explicitly states that common negligence alone would not be grounds for prosecution under the proposed statute. He said his bill would create a standard he called “substantial negligence” – defined in the bill as “a substantial deviation from the standard of care that would be exercised by a reasonable person.”

Simmons said Maryland’s current law is more lenient on drivers at fault in fatal cases than all but a handful of states. He said the language he is proposing has been in the books in 27 other states – including New York, Texas and Connecticut – for many years without being abused by prosecutors.

Despite the overwhelmingly favorable testimony on the bill, Simmons seemed pessimistic about the outcome.

“I don’t have any false illusions,” he said.
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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.
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:
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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.

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.

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.


House Bill 1129 states (in part):



There is little doubt in my mind that this bill is the result of issues raised in this story:

There is a group behind this that is difficult to find out just who they are but with some detective work here 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.


*** 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:

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.


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:
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:
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.

§ 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.

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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