July 14, 2015

Bike share came to Center City Philadelphia this past spring. “Welcome to the City of Bicycle Love,” say the bus signs. And it really is great to see more bikes on the streets.

But, also this spring near Center City, two cyclists (Jay Mohan and 17-year old Adelso Matos) were killed, and another cyclist (Rachel Hall) was placed on life support by people driving automobiles.

A pedestrian (Elizabeth Karnicki) was also run over and killed in Center City this spring, and another Center City pedestrian (Michael Toner) was critically injured. The carnage is, in fact, typically much higher among pedestrians than cyclists. Between 2008 and 2012, there were 16 pedestrian deaths in Center City, out of a total of 158 citywide.[1] Indeed, Philadelphia has one of the highest rates of pedestrian fatalities of any northeast city – an average of 19.2 percent of all traffic deaths.[2] Simply walking around town is especially dangerous for children: pedestrian fatalities are the third leading cause of accidental injury death for children aged 1 to 15.[3]

For me, these are more than just statistics. They’re personal. I live in Center City and am raising two children there. For years, I walked them to school every morning, explaining aloud the traffic challenges we faced at every intersection – all so they would gain enough experience to survive morning rush hour once they started walking by themselves. Now, my older child, at age 15, walks to school (and elsewhere) by himself. For my part, I ride a bike to my job as a lawyer every day, and I ride it most everywhere else I need to go too.

Of course, individual cyclists and pedestrians may sometimes be the cause of the problem in specific instances. We’ve all seen jaywalkers staring at their cell phones, or helmetless cyclists blowing through stop signs.

But the broader problem is that our streets are often unsafe even for cautious cyclists and pedestrians. To make them safer, we will have to alter both the legal and physical environment in which all road users operate – starting with considering the following six changes.

1. Impose Strict Liability On Motorists Who Hit Pedestrians or Cyclists.

“Is it O.K. to Kill Cyclists?” asked a New York Times editorial a couple of years ago.[4] Sadly, the answer was essentially “yes” – because our justice system so rarely holds motorists responsible when they hit cyclists.

Many European countries, on the other hand, impose quasi-“strict liability” on motorists involved in collisions with pedestrians or cyclists.

What this involves, typically, is holding motorists civilly (but not criminally) liable for such collisions unless they can prove the incident was caused by extremely unlikely circumstances that were beyond their control – which is rarely found to be the case. Alternatively, the motorist can try to prove that the pedestrian or cyclist was directly at fault, but, even so, the motorist will still usually be held financially liable for a portion of the damages. And children under the age of 14 are always financially protected regardless of fault.[5]

Laws like these recognize that driving a car imposes grave risks on other people. The law then internalizes to motorists (or, more typically, their insurers) the external costs that a motorist’s decision to drive imposes on other members of society.

Adopting such laws here, in civil actions, could have two salutary effects.

First, such laws would compensate pedestrians and cyclists for the injuries they suffer. As things now stand, it can often be difficult for them to recover their financial damages, particularly since they may be so badly hurt that they are unable to tell their side of the story.

And second, such laws might help change prevailing cultural attitudes – basically, that might is right and so stay out of my way – and instead cause motorists to respect their responsibilities to pedestrians and cyclists. Such a cultural shift could encourage more careful driving around those who are most vulnerable.

As things now stand, it is not uncommon to see a motorist blasting through a crowded city intersection, accelerating as the light changes and leaning on his horn to brush back the pedestrians. So when motorists are not the ones who will be injured in a collision, it makes sense to incentivize them to exercise due care nonetheless. Better laws can help provide that incentive. To the extent those laws may tilt the scales — such that motorists may sometimes be held financially liable in circumstances where fault could not be proven under current law — that is an acceptable price to pay for compensating and protecting vulnerable road users. It is, in fact, simply the price of choosing to drive a car.

2. Impose A Congestion Tax.

In the twenty years I’ve lived in Center City, I’ve seen it become more and more crowded with automobile traffic – to the point that it can undermine the residents’ quality of life. At rush hours, my own Logan Square area seems more like a traffic island than a residential neighborhood. And traffic congestion is only going to get worse over time.

Other cities have countered this trend by implementing a congestion tax for the heart of the city. By that, I mean a toll (like EZPass in principle) for driving into the taxed geographic area, analogous to the approaches now used in London, Stockholm, Singapore, Milan and elsewhere.[6] By adjusting the amount of the tax – and imposing higher taxes on large trucks – the city could maintain traffic volume at desired levels.

Of course, some people may balk at having to pay for something that is now “free.” But driving is hardly costless right now; instead, we all pay the price in the form of delay, gridlock, pollution, collisions, road damage, stress and the impairment of safe walking and cycling.

Other arguments against the congestion tax do not hold up well to scrutiny either. Below are the more substantial objections, and some counterpoints:

• People won’t cycle. Cars are great – but only when there are a reasonable number of them on the road. That will never again be the case in the centers of vibrant older cities like Philadelphia, because there is simply not enough space. Not everyone can or will cycle, of course, but I believe many more people would take up cycling if conditions for cyclists here improved; indeed, the dramatic uptick in cycling here over the last ten years proves as much. So do similar recent increases in cycling rates in cities like Portland, Minneapolis, Washington, D.C., London, Paris and Seville. And cycling has long been widespread in the Netherlands, where the cycling infrastructure is excellent. Moreover, Center City is exceptionally well suited to cycling.

• It will cause adverse economic effects. This is just speculation. It could just as well generate economic benefits. It is, I think, telling that the congestion tax continues to be renewed in cities like London and Stockholm many years after its initial implementation there on a trial basis – precisely because its actual impact has been perceived as beneficial. A pleasant city may well prove to be more prosperous than a congested and polluted one.

• It’s inequitable. Our society distributes far more essential goods than driving one’s private car on the basis of ability to pay, including food, shelter, medical care, recreational opportunities and education. Of course, society does not pay for car ownership either. Viewed in this light, advancing the collective good by limiting vehicular access in congested cities to those willing (and able) to pay a use tax is not unreasonable. Rather, it would simply be another example, among many, of our society’s use of market mechanisms to allocate limited resources efficiently.

• It’s a regressive tax. This is likewise true of many other common taxes (g., sales; cigarettes; gas; and other use fees such as tolls, parking, and licenses of many sorts) but the problem can be remedied by re-distribution. For example, public transit costs could be subsidized by congestion tax revenue. Moreover, no one has to pay the tax if they don’t want to – just don’t drive a private car into the taxed area. Indeed, many Philadelphians already rely primarily on public transit, which itself would benefit from the resulting additional tax revenue, and also from less crowded roads – so our buses could actually move. And finally, making the city more accessible for bicycling will (because cycling is inexpensive) greatly benefit young people and many others who cannot afford car ownership.

Over the long run, it appears probable that cities situated like those in the northeastern United States, as well as many more in Europe (and probably Asia), are going to adopt congestion pricing. Unless we, too, become more proactive in our political and urban-planning choices, then, by default, our city’s future transit development will simply continue on the same unsustainable arc it has for the last 50-plus years – towards more automobile congestion.

3. Lower City Speed Limits.

Last year, New York’s Mayor signed a law reducing speed limits to 25 mph all across New York City as part of a “Vision Zero” campaign to

reduce traffic fatalities. Here in Center City, on the other hand, we still have areas with higher limits. And we have a lot of speeding even in existing 25-mph zones. It is generally unsafe to drive faster than even 20 mph in an urban core that is as congested as ours is with cars, pedestrians and cyclists. As in New York, lower speed limits should be applied here – and enforced.

4. Understand – and Respect – the Legal Protections Cyclists and Pedestrians Already Have.

Pennsylvania’s bicycle laws aren’t perfect, but they already afford cyclists far more rights and protections than some motorists appear to realize. Here are a few examples:

• Cyclists may take a full lane of traffic; they need not hug the curb.[7] Cyclists are thus not “in the way” of traffic – they are traffic! So don’t honk at them to move out of your way; don’t yell at them to “[g]et off the road!”; and don’t buzz them with “punishment passes” intended to put them in their place.
• Cyclists are not required to use bike lanes – even when present. On the contrary, the closest statute Pennsylvania ever had to a “mandatory bike-lane law” was repealed in 1998. 75 Pa. Cons. Stat. Ann. § 3505 (1998 amendment).       Cyclists may thus elect to ride outside bike lanes at any time. And they often need to on account of obstacles, pavement conditions, proximity to parked cars and/or to get where they’re going. The unfortunate fact is that bike lanes often represent token political gestures that are ill-designed to meet cyclists’ actual traffic needs.
• Motorists passing cyclists must leave at least four feet of space and pass at “a careful and prudent reduced speed.” 75 Pa. Cons. Stat. Ann. § 3303.
• Turning motorists may not interfere with cyclists who are proceeding straight – that is, no “left crosses” or “right hooks.” 75 Pa. Cons. Stat. Ann. § 3331.

Relative to pedestrians, the law that is most commonly misunderstood, or at least flouted, seems to be the one that requires turning cars to yield to pedestrians in a crosswalk. 75 Pa. Cons. Stat. Ann. § 3112. All too often, motorists act as if they have the right of way, on their green light, to make a right or left turn, without regard to crossing pedestrians. This is, by far, the single biggest challenge my own children have faced in learning to walk around safely by themselves: remembering to stay alert for turning cars even when it seems like they should be perfectly safe — in a marked crosswalk on a “walk” sign.

Respecting laws like these would be a good place to start.

5. Build Better Infrastructure.

I wish we didn’t need bike-specific infrastructure. Often, I don’t even like it. But experience has proven that many more people will choose to cycle if they can use bike-specific accommodations that make them feel safe.

The key in designing bike infrastructure is that it needs to be an actual improvement. Unfortunately, the most common form of cycling infrastructure — door-zone bike lanes consisting of a painted line a few feet to the left of parked cars — is no improvement. Such lanes are often actually worse for cyclists. They may be politically expedient, but they also have an established record of killing cyclists when opened car doors knock them into passing traffic. And motorists routinely become abusive when cyclists leave door-zone lanes to avoid the risk of opening doors. So what is needed instead, at a minimum, are buffered curbside lanes like the ones on Pine and Spruce.[8]

There is a saying urban planners use when motorists complain about cyclists’ erratic behavior: “cities get the cyclists they deserve.” What this means is that cyclists follow laws better when those laws, and road designs, meet the cyclists’ needs.

Dutch cyclists, for example, follow the rules because the rules are designed to accommodate the cyclists and so make sense to them. Likewise, motorists here generally accept (and comply with) the laws that govern them — because those rules are designed around motorists.

By contrast, a major reason that cyclists here skirt traffic laws is because following “the rules” sometimes imperils them (like riding in door-zone bike lanes) or triggers harassment from motorists (like waiting in line with cars at red lights).

6. Revoke The Privileges of Dangerous Drivers.

Two years ago, I was run over by a motorist while cycling in Philadelphia.

I was riding westbound in broad daylight on the wide shoulder of a two-lane road with no other traffic in sight. A motorist headed eastbound decided he wanted to park on the opposite shoulder. Without warning, he whipped over the double-yellow line, through the opposing traffic lane, and up onto the opposite shoulder where I was riding. He hit me head on.

For me, the result was a trip to the emergency room in an ambulance.

But for him, there were no consequences. He simply told the investigating officer that he “never saw me” – notwithstanding my “screaming yellow” vest, flashing front headlight, and half a mile of clear visibility on a quiet road. The police report found the motorist to be 100% at fault, but, even so, no citation was issued. It was “just an accident.”

As a society, we are quite sympathetic to motorists’ “need” for their cars, but, perhaps, have become too inured to the daily mayhem that incompetent or reckless motorists inflict on other, innocent road users. Driving is a privilege – not a right. For the protection of other road users, that privilege should be revoked upon early signs of incompetence or recklessness. It should also be revoked in instances of hit-and-run, which are all too common in collisions involving pedestrians and cyclists.

Right now, pedestrians and cyclists are forced to navigate a battlefield. And children who live in the city can scarcely venture safely from their homes even on foot, much less on their bikes. We need to change the rules of the road to stop vulnerable road users from being injured and killed – so routinely, so tragically, so predictably. By adopting changes like these, Philadelphia could truly become the “City of Bicycle (and pedestrian!) Love.”

[1] http://streetsblog.net/2014/03/07/what-maps-of-philly-pedestrian-deaths-tell-us-about-street-design/

[2] Inga Saffron, “Save our Sidewalks.” The Philadelphia Inquirer, July 10, 2015.

[3] http://www.smartgrowthamerica.org/documents/dangerous-by-design-2014/dangerous-by-design-2014.pdf

[4]http://www.nytimes.com/2013/11/10/opinion/sunday/is-it-ok-to-kill-cyclists.html?_r=0

[5]For a more detailed review of European strict liability traffic laws, see Colleen Maker, Strict Liability in Cycling Laws to Ready the Roads for Environmentally Friendly Commuting, 42 B.C. Envtl. Aff. L. Rev. 473 (2015), http://lawdigitalcommons.bc.edu/ealr/vol42/ iss2/7.

[6] Former Mayor Bloomberg pushed for congestion pricing in New York City a few years ago, but the proposal was not adopted. As an incentive for the proposal’s adoption, the federal government had offered hundreds of millions of dollars to the city in grant payments through the Urban Partnership Program. As far as I know, the idea has not been pursued in Philadelphia since Chaka Fattah’s 2007 mayoral campaign.

[7] See, e.g, Pa. Reg. § 35-3501 (“every person riding a pedalcycle upon a roadway shall be granted all the rights . . . applicable to a driver of a vehicle by this title”); Phil. Reg. § 12-801 (“[e]very person riding a bicycle upon a highway shall have all the rights . . . applicable to an operator under the provisions of this Title”); 75 Pa. Cons. Stat. Ann. § 3301 (far-to-right laws do not apply to cyclists operating on roads that have only one lane in each direction).

[8] See http://humantransport.org/nccbd/?p=59 for a good explanation of how dangerous door-zone bike lanes can be, because they place cyclists in jeopardy from opening car doors, close passes and/or motorist harassment.