The Virginia Court of Appeals recently ruled that as a matter of law, a man who struck and killed a stopped motorcyclist from the rear at a speed of 47 mph was not guilty of reckless driving despite the fact that the accident happened in broad daylight, the defendant had almost 700 feet of clear sightline between him and the stopped motorcyclist, and an eyewitness testified that the defendant never slowed prior to the fatal collision. The Court of Appeals’ ruling overturned a guilty verdict that had been handed down by the jury that had originally heard the matter. The case is Cady v. Commonwealth. If you would like to read the full opinion you can do so at the following link: http://www.courts.state.va.us/opinions/opncavwp/1595194.pdf
In coming to its decision, the court noted that reckless driving requires more than mere negligence. The court stated that “[T]he reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.” The Court concluded that the driver who killed Raleigh Gary Nelson while he was stopped on his motorcycle fell into the latter category rather than the former. There was a dissenting judge in this case who argued in favor of affirming the conviction rather than overturning it. “Applying their common sense and experience to these facts, the jury reasonably could and did conclude that the reason appellant plowed into the victim and his motorcycle without taking any evasive action is that he was not looking at the road and had not been for some time” the dissenting judge argued. “Unlike cases in which a split-second, momentary failure to keep a lookout has been held not to constitute more than ordinary negligence . . ., the evidence properly viewed supports a conclusion that appellant was not looking at the road for at least ten seconds and for over one eighth of a mile. Given his complete lack of evasive action and the absence of any braking prior to impact, the evidence supports a conclusion that appellant’s failure to maintain a lookout was lengthy, total, and complete.” Unfortunately, the other two judges who heard this case disagreed with that argument.
Sadly, this case does not surprise me. I have sat far too many times with surviving family members who were outraged that the person who killed their son, daughter, mother, father, brother, or sister received nothing more than a citation for failure to yield the right of way or following too close, both of which are mere traffic offenses carrying no more than a fine and court costs. In such instances the defendant often prepays the ticket and avoids having to appear before a court.
Back in 2014, the Virginia Coalition of Motorcyclists (VCOM) attempted to correct this problem by introducing legislation that would have made it “per se” reckless driving to kill or seriously injure another in most types of traffic accidents. “Per se” reckless driving means that it is automatically reckless driving without having to prove any of the usual elements of the offense. We do this with speeding already. If you are doing 80 miles an hour down the interstate it is reckless driving, an offense that carries a potential punishment of up to 12 months in jail and/or a fine of up to $2,500. It does not matter that it is 3:00 a.m. and you are the only vehicle on the road. The General Assembly has said that doing 80 mph is per se reckless driving even if no one was ever really in any danger. VCOM’s position was that acting in a way which actually results in death or serious bodily harm should justify the same potential punishment as acting in a way that theoretically might harm someone. Unfortunately, at that time, the members of the legislature disagreed. But that was 2014 and the make-up of the current legislature is very different.
As you are aware from my earlier email, we will be having this year’s Motorcycle Legislative Roundtable via Zoom. It will be held on September 27th at noon. If you are interested in attending, reply here or send an email to firstname.lastname@example.org and let me know that you want to attend. You will be sent a link prior to September 27th that will enable you to take part in the Roundtable. I would expect that Cady v. Commonwealth will be discussed at that Roundtable, as will the need for revisiting our 2014 efforts.
As always, if you have any questions about anything written here, or any other matters affecting motorcyclists or motorists as a whole, do not hesitate to reach out to me.
McGrath, Danielson, Sorrell & Fuller
The Motorcycle Law Group