Burden of Proof

In translation, Article 185 of the Dutch Road Traffic Act seems to hold drivers “strictly liable” in crashes with vulnerable road users like pedestrians and cyclists. Hans Voerknecht’s layperson description of its relatively heavy consequences to drivers has created small tremors in the American bicycle-and-pedestrian blogosphere. With so many traffic incidents resulting from careless drivers, one might wonder whether strict liability might not incentivize better driving behavior, especially behavior directed towards vulnerable road users.

Article 185 does seem to come very close to the American concept of “liability without fault,” which may be the simplest definition of strict liability. While I don’t speak Dutch, what little I’ve been able to gather about the law corresponds well to Voerknecht’s basic outlines: drivers of motor vehicles on the road are strictly liable to vulnerable users outside their car (but not passengers). If drivers can show contributory negligence, their liability may be mitigated, although they will always be at least fifty percent liable, and in cases involving children under fourteen, they are always one-hundred percent liable. Drivers can escape liability only by showing force majeure; for instance, someone else was driving the car, or the injured person was trying to commit suicide. In one case I found, a moped rider escaped liability for killing a drunken man who had fallen asleep on an unlit road, at night, and could not be seen under the circumstances. By contrast, a Dutch friend of mine found himself having to pay for damages to a young cyclist even though every witness he had agreed that the crash was the boy’s fault.

I think it’s difficult to understand the role of Article 185 without at least a nod to Netherland’s tort law, its social welfare system, and its auto insurance requirements. This backdrop may create a more favorable environment for legislators to place a higher degree of responsibility on drivers, especially by comparison to our own, sometimes skewed system. For example, recoveries for injuries seem to be downright modest by comparison to some awards in the U.S. According to one paper I located, the “loss of one leg, below knee” will usually mean an award of 15,000 to 20,000 euros, far less than, say, the Los Angeles attorney who successfully sued for $4.5 million for “a switchman who lost his leg below the knee.” Similarly, Holland’s mandatory and highly regulated medical insurance coverage means that injury costs may often be covered by health insurance, with no further look towards negligent drivers. Too, my Dutch friends tell me that auto insurance in Holland is issued for cars and goes on the registration record of the car. As such, I would expect that car insurance compliance is higher than in the States, where insurance is for drivers (not cars), and only checked after a crash or in the rare instances that police pull over drivers. Each of these elements allows legislators to tilt the playing field towards vulnerable users without creating a political maelstrom.

In American jurisprudence, liability without fault has long held an uncomfortable position. Our laws and court opinions rarely extend strict liability in a civil context, and the few instances we have are riddled with seeming inconsistencies. California statute will hold you strictly liable if your dog bites the neighbors, but not when your cat rips their couch to shreds. Our courts have developed strict liability theories for product manufacturers and “abnormally dangerous activities,” but have carved out many exceptions. You may find it ironic that driving is not considered an abnormally dangerous activity, given the widespread carnage autos wreak on our roads, but it falls under a “common usage” exception. Activities aren’t abnormally dangerous if everyone is doing them.

(I think it’s not too hard to imagine a different opinion about the car’s danger if it were introduced today.)

I have few hopes of California legislators suddenly passing a Dutch-style strict liability law. While you can make a very good argument that drivers should have high levels of responsibility for their conduct, and owe a substantial duty of care towards vulnerable road users, you’d have to make those arguments in context of our broader legal, health care, and road system. Vulnerable road users often suffer more than the drivers who injure them, but our legal system generally puts liability in some relation to fault, and not merely to the gravity of injury. It’s a morally questionable position to hold people completely liable for a crash no fault of their own, especially when the financial and familial consequences can be catastrophic.

But still.

Cyclists have named whole categories of driver excuses based on their commonality: the SMIDSY (“sorry, mate, I didn’t see you”) and the SWiSS (“single witness suicide serve”) are two I know; there may be others. The near-insouciant means with which these excuses are employed sometimes stagger my faith in the basic goodness of humanity. They are the punch lines to the old joke that driving is the easiest way to get away with murder. They also point up a basic problem of determining fault in collisions with cyclists and pedestrians: vulnerable users are often rendered incapable of being effective witnesses, and the tell-tale signs that wrecked cars leave (skid marks, crash damage location) are sometimes confusing or absent altogether.

Our traffic systems, our infrastructure, our laws, and our law enforcement are all set up for cars. I don’t think any of these systems is necessarily “against” cyclists and pedestrians, but their implementation has the side-effect of disadvantaging them. When it comes to fault determination, they put vulnerable users in the extraordinary position of having to do more to show fault than drivers do. Short of a Dutch-style strict liability law, what we need is some mechanism to level that field, to shift the difficulty of showing fault away from the cyclist or pedestrian.

Here’s a simple proposal: in any crash involving a driver and vulnerable road user, the burden of proof of innocence or fault is placed on the driver; that is, drivers are presumed to be at fault unless they can show otherwise. In the SWiSS cases, for instance, drivers would have to do more than allege the cyclist darted in front of them, they’d have to prove it. The SMIDSY cases would require the same.

A “rebuttable presumption of fault” wouldn’t be perfect, but it would be a start. And maybe that’s all I can ask … for now.