Strict Liability: Civil Law for Civil Streets

Yesterday we highlighted a Bob Mionske column that eloquently lays out inherent biases common in U.S. traffic codes and proposes measures we can take to start correcting them. One of them is strict liability, which generally assigns responsibility for a collision to the operator of the vehicle likely to do the most damage (just as motorists are expected to look out for cyclists, cyclists must look out for pedestrians).

This video, via Copenhagenize, explains. Says narrator Hans Voerknecht:

We say in the Netherlands: Car drivers should be aware of the situation, that they are in the machine that could kill, and that they should behave responsibly.

As reader Mitch alluded to yesterday, strict liability as applied here is primarily a civil law concept. But its value in establishing a culture of equity on the roads, as Mionske writes, is hard to dispute.

In [a] sense, the law is helping Dutch drivers to see cyclists. "Reasonable human beings in other countries see the cyclist," [SF Bicycle Coalition’s] Andy Thornley notes. "How can we help drivers here to look harder?" Through laws that send the right signals when drivers fail in their duties to others.

  • Omri

    It’s not enough. Before implementing strict liability, you have to step up the punishments for hit&run, and step up enforcement (by among other things, requiring all body shop visits to be recorded by license plate and VINs).

    Otherwise, you just give people incentive to step on the gas.

  • I really don’t like Strict Liability as demonstrated in this video and this is what I had to say on Copenhagenizing when they Mikael posted this video:

    I don’t know if I like that and I can’t believe it is true. In the US it would give cyclists free reign to act more like idiots then they do now (I’m a daily commuter cyclist and most/many others I see ride like idiots!). Plus, people here love to sue.

    I think it may be much more preferable to make driver liable when it can not be determined who was at fault. Otherwise, if a cyclist makes an illegal turn, goes through a red light or otherwise does not yield the right of way when an automobile has the right of way, then the cyclist has got to be liable.


    I’m very familiar with the concept of Strict Liability but feel that if it is undeniable that the motorist was driving cautiously, within all due reason, the pedestrian or cyclist was reckless in their behavior and there are witnesses or video to corroborate the actual happenings then I DO NOT feel it is just to hold a driver of a motor vehicle liable.

    Also this would NEVER fly in the US at least as demonstrated in this video.

    Still, I also feel it is completely unacceptable when a driver kills a cyclist during overtaking and then gives the lame excuse, “he swerved into my path.” That is an example crash where I believe some form of Strict Liability is definitely warranted.

  • Andy,

    There was a very similar view regarding products liability up until the mid-1960s, at which point courts brought a revolution in American tort law by implementing strict liability for defective products. Strict liability achieved the judicial goal of fair compensation for victims, although at a substantial cost, including arbitrary “jackpot” verdicts bearing no relationship to the harm done, rampant tort fraud, and the unnecessary bankrupting of several large companies. We as a society have been willing to accept those downsides to achieve justice for victims of dangerous products.

    In contrast, I don’t think a revolution is needed for the civil justice system to work much more fairly in favor of vulnerable street users. All we would need is a rebuttable presumption that the motorist is responsible for a crash. Much like the presumption that a motorist who rear-ends another is responsible for the crash, even if the driver in front stopped short. I actually think that the Netherlands use a “rebuttable presumption” system, because at one point (1:27) the video has a text-over stating that crash victims are entitled to compensation unless the driver can prove the victim was at fault. In other words, the presumption of driver fault can be rebutted if the driver can prove the victim was at fault.

    In contrast, under current rules the tort victim must prove wrongdoing on the motorist part to recover. The question of who the burden of proof is on makes all the difference. You seem to almost agree with me, in proposing that where fault cannot be established, the motorist should be deemed at fault. That is not much different than a rebuttable presumption in favor of motorist fault.

    I think the reason why the Netherlands system comes off so much more favorable to the traffic victim is because as a substantive matter, there is much less of a windshield perspective. We are told, for example, that a judge will not accept a motorist’s explanation that a cylist’s unpredictable behavior was the cause of a crash, because the motorist should have anticipated unpredictable cyclist behavior. In fact, the same principle is set forth in New York law under VTL 1146–a motorist must exercise due care to avoid striking bicyclists and pedestrians, but a bicyclist does not have a reciprocal obligation to the motorist. (In the most broad sense, bicyclists have a general tort obligation not to cause harm to others, but it is significant that the statutes speak only of the motorists’ obligations). Although this arrangement would appear to disfavor motorists, the concept of “due care” is distorted via windshield perspective, witht he result that “due care” becomes virtually no care at all.

    A good example of this is the investigation into the death of a cyclist struck on the 67th Street Central Park Transverse in December 2006, where it took the NYPD months to reach the conclusion that the driver failed to exercise due care when it should have been immediately obvious, and only after focusing on irrelevant facts, such as whether the victim wore light-colored clothing.

  • BicyclesOnly,

    I don’t have the time to give you a really thorough response but I need to reply on a few things.

    First, you talk about strict liability on products which I think is a much different argument than strict liability on operators of a non-defective product. Just making a point but don’t have much to argue against you on that.

    If your analysis of tort law is correct, I agree that it is onerous if not out right biased to have to prove wrongdoing on the motorist part to recover damages. I totally agree that simple carelessness should be the only threshold particularly with regard to “vulnerable user” victims.

    However, I still have a problem with definition of “due care” proposed by the narrator in the video. I think it is completely unreasonable that the only time a driver would NOT be considered liable is if a bicyclist crashes into a car that is not moving. It just doesn’t seem just to put that much of a burden on a motorist who is otherwise operating a vehicle in a safe and cautious manner. And that is coming from someone who spends much more time on two wheels then behind one. I don’t think you have to be removed from the “windshield perspective” to see how this isn’t fair or just.

    Plus, it will be a cold day in Hell before such a version of strict liability is accepted in the United States. It’s a totally unwinnable battle to try to forge at this moment. I believe we would be better served trying to reform the traffic and criminal justice system when it comes to “vulnerable users” first. Maybe then we can start talking about some version of strict liability.

    Thanks for you perspective.

    Andy B.

  • Herbert

    The jaystrolling “pants on the ground” crowd will love this idea.

  • BicyclesOnly


    The problem with focusing on criminal rather than civil justice is the enormous discretion of prosecutors and the much higher evidentiary standards that must be met before criminal vs. Civil liability can be established (proof beyond a reasonable doubt vs. proof by a simple preponderance of the evidence). I am not saying the fight for traffic justice in the criminal courts is unimportant, but prosecutors will always give short shrift to crimes of recklessness when there is so much intenttional wrongoing to go after.

    The fundamental problem is that modern urban automobile traffic is a system in which virtually anyone has the ability to cause grave harm through reckless or even merely negligent conduct. The criminal justice system will not do an adequate job of detering and puishing that harm without a massive transformation. Instead, Americans have generally looked to the civil courts to deter and punish reckless conduct even when causing grave harm on a national scale. Think asbestos, Ford Pinto, and DES. Even when traditional tort law has seemed unequal to the task–for example, in cases of environmental pollution–lawmakers have created frameworks such as CERCLA that rely primarily on the civil rather than criminal courts or agency enforcement action to punish and deter wrongdoing.

    America’s civil courts are structurally capable of the enormous task of compensating against, deterring and even punishing traffic wrongdoing, and they have in fact performed the lion’s share of that task historically. But the playing field for traffic victims is not level, chiefly for two reasons:

    (1) The “windshield perspective”–general acceptance of private motorized traffic as an inherently dangerous but necessarily tolerated activity because it is somehow indispensible. This prejudice against holding drivers responsible for the risks they create is evident in the decsions of both judges and juries.

    (2) The procedural burden placed on victims of traffic torts to prove that the motorist’s negligence (or worse) was the cause of the injury as a prerequisite to recovery.

    Fixing problem #1, the windshield perspective, is the heavy lift. Fixing problem #2, we can do, by apply some form of strict liability.

    Strict liability need not be irrationally applied. Regardless of what the Dutch system of strict liability calls for, under American strict liability doctrine there are virtually always defenses defendants can raise the rebut the presumption of liability. In a common-law legal system (which we have and the Dutch don’t), judges will always recognize exceptions where fairness dictates. In the US, strict liability does not guarantee a certain outcome, but rather provides a procedural framework in which the plaintiff’s proofs necessary for recovery are facilitated and abbreviated in specific ways tailored to the circumstances with an eye toward a just result.

    For example, courts have applied strict liability in low-culpability scenarios deemed “ultrahazardous,” such as harm arising from the use of explosives. While there are exceptions, generally speaking, a person using explosives (for demolition or other lawful purposes) is liable for all harm caused, even in the absence of proof of negligence.

    Is it really that much of a stretch to deem operation of a motor vehicle in a pedestrian-rich urban environment to be an “ultrahazardous activity,” like blasting? As a practical matter, we will not instill in motorists the degree of care that we on Streetsblog often demand of them without applying some form of strict liability.

  • Erin

    Andy B wrote: “I think it is completely unreasonable that the only time a driver would NOT be considered liable is if a bicyclist crashes into a car that is not moving. It just doesn’t seem just to put that much of a burden on a motorist who is otherwise operating a vehicle in a safe and cautious manner.”

    While I agree with this, I also want to point out that crashes would result in fewer deaths if motor vehicles’ speed limits were lowered and enforced. If a person is hit by a car but only slightly injured, the penalty is (or should be) much less than if the person is killed. Sure, the driver’s insurance would be responsible for paying for medical bills, etc., and perhaps the driver’s insurance rates would rise, but it’s less likely that the driver’s life is going to be severely impacted by the incident. Then it hardly seems unfair to hold drivers responsible for the consequences of their driving.

    On another note, I’m amused by the word Herbert used – “jaystrolling”. I don’t think that the commenter understands the reason for this behaviour, though. It’s certainly not because they want to be hit or they directly want others to get in trouble. It’s more like a power play – a way to take control of a situation, any situation, when one feels otherwise generally powerless.

  • BicyclesOnly,

    We agree much more than we disagree. I like the idea of strict liability but just not the extreme version described in the video. I also agree that the operation of a car has the potential to be “ultrahazardous” and that Americans have become completely blind to the destruction automobiles cause.


    Nice evaluation of “jaystrolling.” Spot on!

  • Herbert

    So is rape, that doesn’t make it ok.


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