Transportation for Life

Change the Safety Culture: Prosecute the Truck Driver who Killed Cyclist Anita Kurmann

I am grateful for the effort that has been made to illuminate the circumstances around the death of bicyclist Dr. Anita Kurmann on August 7, 2015. Dr. Kurmann was killed when a 48 foot semi-trailer truck executed a sharp right turn in front of her at the intersection of Massachusetts Avenue and Beacon Street.  I wish to share with the Boston area bicycling community my perspectives on this incident and its implications for the safety of pedestrians and bicyclists.

Understanding a case like this is critical for Vision Zero efforts because of its relationship to the safety culture. While Vision Zero rightly emphasizes infrastructure and passive safety devices like sideguards, it also includes creating a culture of safety and respect for vulnerable road users, with a special emphasis on large vehicles (trucks) that disproportionately kill us. The Boston Police Department’s conclusion in the Kurmann case is that the cyclist was to blame rather than the truck driver; and that somehow the driver shouldn’t be held culpable in spite of breaking two laws, one prohibiting drivers from turning in front of a cyclist unless they can do so leaving a safe amount of space between their vehicle and the cyclist, and the other requiring motorists to turn right from the rightmost lane. (MGL 90.14 “When turning to the right, an operator shall do so in the lane of traffic nearest to the right-hand side of the roadway and as close as practicable to the right-hand curb or edge of roadway.”).

The Police Department’s conclusion is rooted in the prevailing safety culture which holds that riding a bike is inherently dangerous (swimming with sharks, as Toronto’s former mayor said; our own mayor said something similar last spring), in contrast to a Vision Zero culture which says that driving a large truck in a city is what’s inherently dangerous, and those that do so have an obligation to do all they can to avoid injuring others. Vision Zero says that it’s not enough to say you didn’t see the cyclist; it’s your obligation to look and to go slowly enough to make sure that you won’t hurt anybody, especially when you’re making an extra-legal maneuver – in this case, turning right from a position straddling the middle and left lanes – that violates expectations and is likely to lead to deadly conflicts.

Anybody familiar with traffic safety in the European countries that gave us Vision Zero knows that a critical component is creating that safety culture in which motorists – especially truck drivers – are made aware that THEY are responsible for the safety of vulnerable road users. And the primary way to advance that safety culture is to create laws and regulations that reflect this view, to and credibly and visibly enforce those laws.

Enforcement is critical! Laws are meaningless if our culture won’t enforce them! I’m reminded of a case in which a driver on a rural Oregon road, not paying attention, drifted into the shoulder, hitting a cyclist with such force that he was thrown off the road and smashed into a tree. Yet the police refused to cite the driver for violating the state’s 3-ft passing law on the grounds that the charge wouldn’t hold up in court because no police officer was present to witness the event. From cases like that, everybody comes to understand that the 3-ft law has no teeth; you can ignore it.

Here in Massachusetts we passed a bicycle safety law about four years ago prohibiting drivers from overtaking a bike unless there is sufficient space to do so safely, explicitly including the case in which the driver is making a right turn. How much of the driving public is aware of this law? Precious little, I’d say. And what will make them aware of it, and make them change their behavior in the way that the law mandates? Visible enforcement! This is a test case of whether Massachusetts does or doesn’t have a “real” law granting through bikes right of way over right turning vehicles. If a driver can’t be held in violation even when they actually collide with and kill the cyclist, then it’s as though we have no such law. For that reason we should be pushing the Boston Police Department and the Suffolk County District Attorney’s office to reopen this case and charge and prosecute the driver for his actions.

Yes, it’s true that after the death, Boston’s Transportation Department made some infrastructure improvements. That shows that there are some officials in City Hall who understand and care about cyclists. At the same time, the Police Department’s conclusion is clear evidence that many others in City Hall – including many on whom cyclists’ lives depend – don’t understand and don’t care. Yes, we should be pushing on this case.

Some people may object, saying that bringing this case back into the public light will be a painful reminder to the victim’s friends. Granted, nothing we can do will bring Dr. Kurmann back; but what we’re weighing off here is the pain of a reminder to some of Anita’s friends versus the infinitely greater pain that others will have when their loved ones are run over by other truck drivers who aren’t careful when they turn. The people behind this effort rightfully gave veto power to Anita’s family. But for friends and acquaintances, it’s bound to be a split decision – while some would rather bury the issue and move on, many others will earnestly support an effort to make something good come of Anita’s death, hoping that it might be used to prevent other deaths.

A second objection is that we shouldn’t be vindictive, and we should be concerned about how cruel criminal prosecution could be to the driver. This effort is not about vindictiveness – rather, it’s about changing the culture and attitudes about vehicular crashes that injure or kill pedestrians and bicyclists. Wanting penalties applied for failing to look out for cyclists is not the same as being vindictive; rather it’s that we want drivers to be held to a higher level of care, and without prosecution and penalties, people won’t.

With regard to punishment, we mustn’t think that the only choice is to trade one extreme for another. One extreme, which we aren’t happy with, is no culpability at all. The other extreme – a long prison term, for example – is not what’s being demanded, either, nor is it likely. What’s being demanded is justice, which means applying the law objectively, and if the person is found guilty, applying a punishment that balances the crime and serves as a deterrent. The punishment has to be enough that it sends the message to other drivers, particularly truck drivers, that they’d better be more careful when turning right (and driving in general) on city streets. A lot of cases like this get settled with plea bargain, in which the terms might involve something like a loss of driving license for a number of years, community service, and probation in which the driver would get prison time for violations such as driving without a license. That’s exactly the sort of punishment that occurs for cases like this in Vision Zero countries like Netherlands and the Nordic countries.

As an individual cyclist, here’s how this case affects me: The Police Deparment’s decision that Anita Kurmann, and not the truck driver, was at fault makes me feel less safe. It empowers vehicle operators, particularly truck drivers, to continue to be bullies on the streets. And it makes me feel that the prevailing view in City Hall remains that the lives of bicyclists don’t matter when compared to the freedom of drivers to carry on as they always have. I would vastly prefer to believe otherwise – and so I support the effort to give City Hall a chance to show that they do care by reopening this case.

Alan Wright, Joel Feingold, Andrew Fischer, Peter Cheung, and Richard Fries (MassBike exec director) have done a great service to us bicyclists by assembling the evidence, reaching out to the City government, and pushing this case out to the public view. I hope that that the bicycling community will unanimously applaud them, support the effort, and make certain their elected officials know that we want corrective action now.