Watching the agonizing frame-by-frame the moments before, during and after the 2015 deadly bicycle crash that killed Dr. Anita Kurmann as she cycled along Massachusetts Avenue is gut-wrenching. What’s especially horrendous, though, is that the driver of the tractor-trailer that brazenly mowed her down has not been criminally charged, despite obvious violation of the law. Boston police instead shockingly concluded Kurmann herself was to blame for failure to recognize the truck was preparing to turn.
Any good bike injury lawyer knows this conclusion is wrong. It ignores the fact that the truck driver had a legal obligation to stay alert to his surroundings – including the presence of vulnerable road users – and turn safely.
Lead bike attorney Andrew Fischer of BikeAttorney.com was part of a team of dedicated advocates that recently drafted an in-depth analysis of the Kurmann case, submitted to the district attorney’s office with an urgent request for further review. This report scrutinized point-by-point, second-by-second how this crash unfolded, establishing the trucker’s overt failure to adhere to MGL Chapter 90 Section 14, which barred him overtaking a bicyclist to make a right turn, “unless the turn can be made at a safe distance from the bicyclist at a speed that is reasonable and proper.”
The driver’s conduct went beyond simply a breach of duty to use reasonable care (the standard for negligence). It was criminal. As the analysis clearly showed, the trucker’s violation of the law regarding right turns when bicyclists are on the right lays ample foundation for a charge of negligent homicide. The evidence further supports a probable cause finding for charges of involuntary manslaughter, pursuant to MGL c. 265 s. 13, operating to endanger, and reckless driving – all based on his glaring violation of MGL Chapter 90 Section 14.
Unfortunately, the Kurmann case is not isolated in Boston terms of the lack of prosecution for deadly bicycle accidents. As noted in bike attorney Fischer’s and MassBike’s 24-page memo to District Attorney Daniel Conley, Dr. Kurmann was one of 33 people killed while riding a bicycle in Massachusetts in the last three years. Of those, only five resulted in criminal charges. Of those, only two resulted in convictions. In nine of those cases, bicyclists were killed in collisions with professional drivers operating large trucks. Not one of those nine cases have resulted in criminal charges. Zero!! Frankly, it’s an outrage.
Video evidence clearly demonstrates the driver knew or should have known Kurmann was in the bicycle lane to his right. He passed her on his right while he drove south. That means as he came to a stop, he knew or should have known she was likely going to catch up to him, given that she was traveling the same direction as him on Massachusetts Avenue. He knew or should have known Kurmann was likely to be in the path of his truck when he made that right turn onto Beacon Street. He had plenty of opportunity to see her in his mirrors and check her location before he turned and while he was turning (and cutting her off). But rather than proceed with caution, as was his legal duty, evidence shows he proceeded with that turn at excessive speed, particularly given the fact that this was a densely populated road. What’s worse is that he was in an over-sized trailer, which means he had all the more reason – and legal duty – to exercise extreme caution.
When he made that right turn, he swung into the middle lane, cutting off not only Dr. Kurmann, but also the other two travel lanes on his right. This maneuver can only be classified as aggressive and dangerous, and if it was going to be made, it should have been done at a very slow speed. Dr. Kurmann was helpless, though she did stop immediately and try to move out of the way once she realized what was happening. There wasn’t enough time. As Bike Attorney Fischer explained in the analysis his team presented to the Boston Police, this conduct goes beyond mere accidental negligence and is sufficient basis to bring criminal charges of negligent homicide.
The driver then continued on, leaving the scene, and didn’t contact authorities until many hours later, by which time he was out-of-state.
Richard Fries, executive director of MassBike, was quoted recently by The Boston Globe as calling this, “the most unfortunate example of victim blaming we can ever cite,” adding the case deserves its day in court.
Yet prosecutors for the Suffolk County District Attorney’s office have responded that there was no reason to pursue charges, despite declining to address the law requiring drivers to yield in situations such as these. They relied heavily on the conclusions of law enforcement investigators, who determined the driver had his turn signal on for eight seconds prior to making the turn, and that the crash was Dr. Kurmann’s fault because she was outside the trucker’s vantage and did not recognize the truck was turning. “Putting on your blinker does not give you license to break the law and kill someone,” commented fellow Bike Attorney Andrew Brodie.
“People put their turn signals on all the time and don’t turn,” noted bike injury lawyer Andrew Fischer. “But even if she saw that blinker, there wasn’t time to react. And the fact remains, the driver had a legal duty to make a safe turn.”
While Fischer and the team of bicycle safety advocates are among the most dedicated advocates, working diligently when it comes to bicycle law and policy, we must at the very least enforce the existing laws. Yes, there are traffic engineering issues. Yes, we need more bicycle infrastructure. But when motorists – particularly those in large trucks – know they can get away with murder, literally, there is little incentive to exercise greater caution and avoid egregious violations of the law.
The cycling community in Boston is incensed that the lack of any meaningful enforcement encourages motorists continue to disregard traffic laws with impunity, especially when it results in serious injury or death of a bicyclist. You may recall recently numerous bicyclists formed a human chain along Congress Street, forming a physical barrier between bicyclists and motor vehicles along what is known as a perilous stretch for those on bikes. Also recently, MassBike announced its full support of a measure that would require improved convex mirrors on tractor-trailer vehicles, providing greater visibility to drivers, as well as truck side guards for any companies contracting with the state. The measure would also require a better method of reporting bike-related injuries and deaths in the Commonwealth. Side guards especially could help prevent bike crash deaths during right turns; cyclists would be pushed to the side rather than swept underneath the wheels.
Fries noted that the intersection where Dr. Kurmann was killed now has a clear designated bicycle lane, complete with plastic posts to separate bikes from motor vehicle traffic and signs warning drivers to yield to cyclists and pedestrians. These changes do help make cyclists safer, Fries said, but cyclists shouldn’t have to die to achieve them.
The full video of the Kurmann accident and the detailed report is available at http://www.massbike.org/anitakurmannvideo. If after watching and weighing the facts you are as enraged and saddened as we are from the callous unwillingness of the police and the DA to prosecute drivers who kill bicyclists, post to DA Conley’s Facebook page asking him to prosecute the person who killed Anita Kurmann or email DA Conley’s office at SuffolkCommRelations@massmail.state.ma.us.
If you or someone you love has been injured in a Boston bicycle accident (we prefer the term “bike crash”), call for a free and confidential appointment at 617-777-7777.
Group blames truck driver for fatal 2015 bike crash; police say prosecution’s not warranted, Jan. 23, 2017, By John R. Ellement and Adam Vaccaro, The Boston Globe
More Blog Entries:
Boston Hit-And-Run Crashes Involving Injured Bike Riders, Jan. 14, 2017, Boston Bike Injury Lawyer Blog