TALKING POINTS – HB 784
DRIVERS MUST EXERCISE DUE CARE
(Version #1: 1/20/12)
1) Bill Objectives: This bill would require drivers of motor vehicles to exercise “due care” to avoid colliding with pedestrians and persons propelling human-powered vehicles, even when the driver has the right of way. If enacted, this “due care” requirement should reduce the numbers of fatalities and serious injuries to pedestrians and bicyclists by helping to educate motorists that they have a legal duty to avoid colliding with pedestrians and bicyclists whenever feasible. This bill would also help improve justice for pedestrians and bicyclists who are injured or killed by a driver who could have avoided the collision if he or she had devoted full time and attention to the task of driving.
2) Bill Summary: This bill would add a new section (§ 46.2-923.1. Drivers to exercise due care.) to the Code of Virginia, to better conform the Code of Virginia to the Uniform Vehicle Code and to the traffic codes of all but three other states.
3) Virginia Transportation Research Council Study: The need for this legislation was uncovered in a 2007 survey of state pedestrian and bicycle laws [ http://vtrc.virginiadot.org/PROJDetails.aspx?Id=376 ] conducted by VDOT’s Virginia Transportation Research Council (since renamed the Virginia Center for Transportation Innovation and Research) in Charlottesville. The resulting study report, entitled "Safe travel for Virginia's non-motorized road users: a comprehensive review of pedestrian and bicycle laws in Virginia and the United States" [ http://www.virginiadot.org/vtrc/main/online_reports/pdf/08-r5.pdf
] , noted on page 54 (and also in the Abstract) that Virginia is one of just four states missing an important "due care" provision which is stated in the Uniform Vehicle Code as follows:
Statutes That Are in the Uniform Vehicle Code But Not in the Code of Virginia
UVC 11-504—Drivers to exercise due care.
"Notwithstanding other provisions of this chapter or the provisions of any local ordinance, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian or any person propelling a human powered vehicle and shall give an audible signal when necessary, and shall exercise proper precaution upon observing any child or any obviously confused, incapacitated or intoxicated person."
The VTRC report also provided the following commentary:
"Although both drivers and pedestrians have a common law duty to use due care,  the provision as a whole would be strengthened by a statutorily enumerated duty to use due care. When assessing liability, a “due care” provision makes it clear that a driver cannot avoid liability simply because he or she had the right of way. Pedestrians are admonished not to “carelessly or maliciously interfere with the orderly passage of vehicles,” not to “enter or cross an intersection in disregard of approaching traffic,” and not to “step into a highway . . . at any point between intersections where [their] presence would be obscured from the vision of drivers,” yet drivers are not cautioned to use reasonable care not to strike a pedestrian. Considering that in an accident, the pedestrian is likely to suffer the greatest injury, it makes sense to caution drivers to use due care all the time, not only when “entering, crossing, or turning
4) Traffic Law Conformity: This bill closely replicates § 11-504 of the Uniform Vehicle Code. As documented on pp. 102-105 of the VTRC report, Virginia is one of only four states (with MA, SD, and WI) that does not statutorily require drivers to exercise due care at all times to avoid colliding with pedestrians and bicyclists. (This comparison omits Michigan, which lacks statewide traffic laws altogether.)
5) Only Motorists, Not Non-Motorized Drivers, Would Be Required to Exercise Due Care: By using the term “every driver of a motor vehicle”, instead of “every driver of a vehicle”, the proposed due care requirement, as drafted, would not apply to bicyclists or to drivers of animal-drawn vehicles. The Virginia Bicycling Federation did not intentionally request this divergence from the Uniform Vehicle Code and is not opposed to having the due care requirement apply to “every driver of a vehicle”. Bicyclists and animal-drawn vehicles do occasionally cause serious injury and even death to pedestrians and (other) bicyclists, and non-motorized drivers should not escape liability when they collide with pedestrians and other bicyclists due to their own failure to exercise reasonable care.
6) Relationship to Past Legislation: No similar legislation was introduced in recent years and possibly ever before in Virginia
7) Pedestrian and Bicyclist Injuries and Fatalities: In recent years, Virginia has averaged more than 2,400 pedestrian and bicyclist injuries and 94 pedestrian and bicyclist fatalities annually in reported traffic crashes. Many, if not most, of these collisions could have been avoided and the severity of injuries could have been lessened if the drivers involved had devoted their full time and attention to the task of driving. Besides helping to reduce the incidence and severity of pedestrian and bicyclist crashes, passage of this bill would help ensure that a negligent driver is at least charged with a traffic infraction which should expedite victim and estate compensation via an insurance claim and/or civil suit.
8) Driver Education: If this change is adopted, DMV’s Virginia Drivers Manual, the state Drivers Test, Virginia drivers education curricula, and other traffic safety materials can acknowledge it, thus educating drivers of their legal duty to avoid colliding with pedestrians and bicyclists at all times, even when the driver has the right of way and the pedestrian or bicyclist is a “child or an obviously confused, incapacitated, or intoxicated person.”
9) Bicycle-Friendly State Criterion: The League of American Bicyclists evaluates state bicycling statutes as a criterion for ranking the bicycle friendliness of the 50 states. Passage of this bill would help improve Virginia’s ranking in the future which would help attract more out-of-state visitors who enjoy bicycling and/or walking to visit and spend money in Virginia.