Washington Bike Law is working to pass presumption of liability laws for drivers who collide with people walking or rolling on bikes or wheelchairs.
Presumed Liability Legislation Overview
Drivers of motor vehicles would be presumed responsible in the event of a collision with a pedestrian or bicyclist. This law would essentially make drivers’ insurance companies pay for any damages proven unless the driver/insurer proved that the person walking or riding was a cause of the crash.
Why do we need presumed liability legislation?
- Driving is dangerous. Being hit by a car is the most frequent cause of injury for bicyclists. Each day on average in the USA drivers kill more than 13 pedestrians. A presumption of liability would motivate those with the most power to prevent collisions to do so.
- We already have a de facto presumption of drivers’ non-liability: pedestrians and bicyclists are both said to “come out of nowhere” in crashes. Police, judges, and juries often take the driver’s perspective.
- Injured people currently have the burden to prove drivers were negligent to obtain compensation from a driver’s insurance (and even from their own car insurance if a driver is uninsured or underinsured).
- Negligence is the failure to exercise ordinary care. A King County jury recently decided a driver used ordinary care in failing to stop for a person in a marked crosswalk so the driver/insurer had no liability.
- Many pedestrians and bicyclists lose memory because of head injuries and are unable to prove what happened in a crash.
- A presumed liability law could do more than just help compensate injured people; it could motivate more people to ride simply because of the perception of increased safety. Studies show that more people riding makes riding safer. The law could also motivate drivers to be more careful, making our streets safer for walking and bicycling.
- Infrastructure improvements are helpful, but require money and time; the law can be changed as soon as we have the political will to update our rules of the road.
- Drivers are strictly liable or presumed liable in places where the infrastructure is also safer for pedestrians and bicyclists including Belgium, Denmark, France, Germany, the Netherlands, Sweden, Spain, and Switzerland. Iceland, which has little bicycle infrastructure, has strict liability for drivers.
What’s the difference between strict liability and a presumption of liability?
- Strict liability means a driver is automatically at fault. An injured pedestrian or bicyclist only needs to prove that damages are related to a crash.
- A presumption of liability means a driver is assumed to be at fault, but can be found less responsible or even fault-free with evidence that a pedestrian or bicyclist contributed to a collision.
Can we actually pass legislation creating a presumption of liability? Yes, we can!
- Washington has had strict liability for dog bites since 1941: “The owner of any dog which shall bite any person … shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness.” RCW 16.08.040(1). Far more people are injured or killed by cars than by dogs, and car insurance is mandatory in Washington.
- Washington has protected its bridges since 1937 by legislating strict liability against drivers and owners of vehicles that damage them and created a presumption regarding the amount of damages. This is still the law under RCW 46.44.110. Shouldn’t people have at least as much legal protection as bridges? The relevant language is “Any person operating any vehicle or moving any object or conveyance upon any public highway in this state or upon any bridge or elevated structure that is a part of any such public highway is liable for all damages that the public highway, bridge, elevated structure, or other state property may sustain…” and “Any measure of damage determined by the department of transportation to its highway, bridge, elevated structure, or other property under this section is prima facie the amount of damage caused thereby and is presumed to be the amount recoverable in any civil action therefor.
- Washington legislated strict liability in 1970 for oil spills: “Any person owning oil or having control over oil that enters the waters of the state in violation of RCW 90.56.320 shall be strictly liable, without regard to fault, for the damages to persons or property, public or private, caused by such entry.” RCW 90.56.370 (1).
- Washington legislated strict liability in 1973 for burns from fabric that does not comply with the standards established in the Standard for the Flammability of Children’s Sleepwear. “Any person … shall be strictly liable for fabric-related burns.” RCW 70.110.040.
- More recently, Washington legislated a “prima facie presumption” in 2019 for Hanford workers that certain conditions are occupational diseases, but the “presumption of occupational disease may be rebutted by clear and convincing evidence.” RCW 51.32.187.
- King County trail use rules include a presumption of liability: “Travel at speeds in excess of 15 miles per hour shall constitute in evidence a prima facie presumption that the person violated this section.” KCC 7.12.295(A).
- It is a well-established in the common law that, in the absence of an emergency, the following driver is prima facie negligent if that driver runs into the vehicle ahead. Vanderhoff v. Fitzgerald, 72 Wn.2d 103, 431 P.2d 969 (1967); Miller v. Cody, 41 Wn.2d 775, 252 P.2d 303 (1953).
- Presumed Liability would still permit drivers (and insurers) to prove that a pedestrian or bicyclist had fault for a crash. It is not strict liability and would not apply to criminal prosecutions, only to civil claims.
- Presumed Liability Legislation could include the same presumption against bicyclists who collide with pedestrians. This would avoid “war on cars” rhetorical attacks. The goal is not to punish people who drive, it is to have safer streets for everyone.
Want to help make presumed liability the law?
- Join the Presumed Liability Working Group by emailing info@washingtonbikelaw.com.
- Talk about #PresumedLiability on Social Media. Tag your City and State representatives and ask them to sponsor legislation creating a presumption of liability.
Bob Anderton (and many others) gave public testimony at a special Seattle City Council meeting on August 9, 2019, regarding at in support of Seattle’s Move All Seattle Sustainably (MASS) Transportation Package and three other pieces of safe streets legislation:
- A Bicycle Safety Ordinance making it harder for politicians to delay or delete bike projects.
- A resolution requesting full funding for Bicycle Implementation Plan projects, including the Beacon Ave Trail, MLK Ave, the Georgetown to South Park Trail, the SODO to Georgetown connection, and two-way bike lanes on 4th Ave downtown.
- A resolution requesting that SDOT build off-sidewalk bike and scooter parking (in-street bike corrals) to ensure pedestrian access on sidewalks, especially for those of us with disabilities.
Bob Anderton spoke about Presumption of Liability Legislation to a receptive crowd at Cascade Bicycle Club‘s Big Ideas Festival in January 2016:
Seattle’s King 5 News did a story a few years back on presumption of liability for drivers who collide with pedestrians or bicyclists.
Watch the video here.
The Washington Defense Trial Lawyers, are apparently concerned about a presumption of liability law, according to a law firm with ties to the organization.
The firm says it “recently received a ‘What do you think?’ query from the Washington Defense Trial Lawyers and a link to a news article quoting Bob Anderton, a Seattle attorney and advocate for bicyclists.”
Note that the motto of the Washington Defense Trial Lawyers (or WDTL) is “Fighting for Justice and Balance in Civil Courts”… because too much justice can be a problem for the insurance companies WDTL lobbies for.
The firm WDTL contacted suggests, “Another possible option involving the legislature and potentially finding favor with the insurance lobby may be mandating PIP coverage at certain levels.”
In other words, instead of legislation that could motivate drivers to avoid collisions with pedestrians and bicyclists, the WDTL firm suggests requiring pedestrians and bicyclist buy no-fault insurance to protect themselves against the inevitability of being run-down by an inattentive driver. That’s not Vision Zero, that’s zero vision.
The defense firm claims, “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.”
This over-simplified argument against a presumption of liability ignores the motivation to pay attention that would come with updating and clarifying our rules of the road to protect vulnerable pedestrians and bicyclists.
Washington Bike Law’s Bob Anderton has been advocating to make our streets safer for everyone for many years. Unfortunately, our rules of the road still favor maximizing car speeds over safety. Here is an article Bob wrote for the King County Bar Bulletin in 2009.