Sun Glare? Can’t See? Kill A Kid? NO PROBLEM- at least in New Philadelphia, Ohio

On his last day alive on planet Earth 12 year old William Logan Morris chose to ride his bicycle along County Road 52 near New Philadelphia, Ohio on a cold, crisp sunny December afternoon. He was riding southwest along County Road 52 around 4:15pm on December 14, 2017.  This road, in Tuscarawas County, is a typical Ohio country road… two- lane,  asphalt – narrow lane [looks like about 10′ lanes from the crash report] – there was a  centerline present but no edge lines – no real “berm” other than dirt.

The crash report says it was 25 degrees – visibility was “10 Miles” – so a nice bright sunny…er… well… the report says “95% Cloud Cover”- but let’s assume it’s bright and sunny… Sunset that day was 5pm, so the crash was well within the daylight hours…

William Morris was killed around 4:15pm that day when a huge Dodge Ram 1500 truck driven by 41 year old Troy Dalpiaz slammed into him from behind.

As young William Morris was riding on County Road 52 he was likely unaware that Mr. Dalpiaz was hurtling towards him from behind at 40-45 mph and “couldn’t see” him. Children tend to believe the best in us – they trust adults to do the right thing.  I would bet that William Morris never dreamed that anyone would be stupid enough to drive a big truck down the road if they “couldn’t see” what was in front of them.

Mr. Dalpiaz was driving the 2+ ton truck down the road at, he claims, 40-45 mph… I say “he claims” because the posted speed here is 55 mph and few folks go flying down these open country roads while driving 10 mph below… but hey… let’s give him the benefit of the doubt…

Sunset on December 14, 2017 was at 5pm… so … Surprise … Surprise – the sun was setting in the west 40-45 minutes before sunset… Mr. Dalpiaz was driving “southwest” so towards the setting sun… So Surprise Surprise… there was sunshine coming into Mr. Dalpiaz’s front windshield. “Sun Glare” as the prosecutor noted… made visibility difficult, if not impossible.

Mr. Dalpiaz wisely chose to not drive into the sun when he couldn’t see anything in front of him …er … kept on driving forward at 45 mph in a 2 ton pickup truck – even though he couldn’t see …

In fact he told the Ohio State Highway Patrol after he killed William Morris that he couldn’t see… he never saw young William Morris before he slammed into him with the right side of the truck… in fact, it appears that he never saw ANYTHING for ” FIVE TO SIX SECONDS” prior to the crash… he was just driving along on Hopes & Prayers I guess…

Sadly… the prosecutor here felt these facts were not enough to charge the driver of the truck with ANY sort of crime at all…

 

 

 

5-6 Seconds of Blind Driving at 45 mph.  Let that sink in…

The sun was in his eyes for 5-6 seconds but hey… “I made sure I was maintaining my lane because I knew I couldn’t see any oncoming traffic…”

Let’s do the math 5 seconds at 45 mph= 5 x 66 feet per second = 330 feet = 110 yards… a football field + an end zone.

So Mr. Dalpaiz was driving…completely blind as to what was in front of him… for more than the length of a football field…

So get in your car, get that baby up to 45 mph, put a paper bag over your head and drive forward counting “one one thousand, two one thousand, three one thousand, four one thousand, five one thousand…”  If that’s not a criminal act on a 45 mph stretch of roadway I don’t know why we even HAVE a Negligent Homicide statute…

So why were no charges brought? Good question…

Here’s what the only media report I’ve found says:

“At this time, my office will not be pursuing charges … from this accident as I do not believe the evidence would produce a successful prosecution,” Jackson wrote. “Several factors were considered to reach this decision. First, lab testing confirmed (the driver) did not have any drugs or alcohol in his system. It was also confirmed that he was not using his phone when the collision occurred.”

OK, so he’s not drunk, or texting … but that’s not an element of Negligent Vehicular Homicide in Ohio. Those are elements of a higher crime – Aggravated Vehicular Homicide… which is a felony adn can lead to 8 years in prison. Negligent Vehicular Homicide is a misdemeanor with a max sentence of 180 days…

So what else was going on in the car? According to young William Morris’s family…

… John Morris said that he listened to the motorist’s statements at the scene right after the crash, which occurred at 4:14 p.m. He said the pickup truck driver admitted he was reaching for this phone and when he looked up, the sun was in his eyes, and it was too late.

Reaching for his phone???  I thought his eyes were on the road – which he couldn’t see anyway?

But Wait… there’s MORE… Let the VICTIM BLAMING BEGIN…

Bicyclists are required to stay as close to the right edge of the road as possible, according to Sgt. Gary Wolfe of the New Philadelphia post of the State Highway Patrol, which investigated the crash.

Jackson said William Morris was not riding as close to the edge as possible.

Wait… what? The cyclist’s LANE POSITION was problematic?

Ummm… how can I say this delicately … NO… NO… and NO… THAT’s NOT THE LAW… THAT’S NOT EVEN CLOSE TO THE LAW…

There is NO “close to the edge as possible” law in Ohio.

The family knows this… and gets it right in the story…

Morris disagree with the prosecutor’s statement that a bicyclist is required to ride as close to the edge of the road as possible for the conditions of the road. He said the bicyclist is entitled to use the entire lane of travel between the edge and the center line.

YES! We have a winner… On a NARROW lane like this one the cyclist may use the entire lane!

How do we get to that conclusion? Why… by reading the actual LAW, something which it appears that both the Trooper and Prosecutor failed to do…

Ohio Revised Code Section 4511.55 is Ohio’s version of the ubiquitous “AFRAP” law – “As Far Right As PRACTICABLE” – [not “possible.”]

Ohio law says this in 4511.55(A):

4511.55 Operating bicycles and motorcycles on roadway.

(A) Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable obeying all traffic rules applicable to vehicles and exercising due care when passing a standing vehicle or one proceeding in the same direction.

“Practicable” does not mean “possible.” While “practicable” remains undefined in the Revised Code, the Ohio Bicycle Federation drafted changes to 4511.55 … way back in 2006… which added definitional teeth to the AFRAP law.

Yes, 12 years ago the Ohio Bicycle Federation drafted a bill which added the “C-Section” – 4511.55(C). Because the word “practicable” was not defined in the Code I had argued in bike cases for 20+ years that whatever the word “practicable” meant the definition HAD to have elements fo “Safe” and “Reasonable” built in… I reasoned that the Ohio Legislature would NEVER require a vehicle operator to operate a vehicle in a manner that was unsafe or unreasonable, eh?

So draft it we did… then the OBF Board drafted 4511.55(C), added it to the Better Bicycling Bill, pushed it, found some support in some helpful legislators… I was one of several OBF Board Members who attended hearings and testified in favor of the Bill… and eventually the changes to 4511.55 were passed [unanimously, I might add] as part of the huge 2006 Better Bicycling Bill.

The C-Section says this…

4511.55 Operating bicycles and motorcycles on roadway

***

(C) This section does not require a person operating a bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle and an overtaking vehicle to travel safely side by side within the lane.

Obviously, a 10 foot lane is “too narrow” for Mr. Morris to “share”  with a huge Dodge Ram pick-up truck… the lane was too narrow for them to travel “safely side by side within the lane…”  Indeed, 4511.55(C) applies to just about every country road lane in Ohio because they are ALL “too narrow” to be shared… Assuming the cyclist is riding into the lane a few feet, and a vehicle needs to allow a 3 foot clearance for passing, it’s easy to see how that 10 foot width gets used up in a hurry.

Keri Caffrey, a Florida bicycle advocate and graphic artist, shows in a scale drawing why a 14 foot wide lane is too narrow to be shared… there just isn’t enough room when you allow the cyclist some reasonable space, add THREE FEET for passing as Ohio law now requires and then factor in the width of a big truck… 14 foot is too narrow to share – TEN FEET is WAY TOO NARROW TO BE SHARED… Thus, by virtue of 4511.55(C), the cyclist was NOT required to follow Ohio’s AFRAP law, and was permitted to use the entire lane… the lane position of the young boy here should have NEVER been a factor to police or a prosecutor…

 

So what else factored into the decision to not prosecute Mr. Dalpiaz?

Oh yea… sun glare…

“Finally, there appears to have been a distinct issue with sun glare at the time of the accident,” Jackson wrote. “This sun glare would have obstructed (the driver’s) view and was unavoidable for the moments immediately prior to the crash.”

WHAT? Sun glare was “unavoidable?” Imagine that…  Yes, if the driver was DWB – DRIVING WHILE BLIND… then sun glare was “unavoidable” – I guess under than logic if you drive through a blinding rain when you “can’t see” then anything you hit is just an “unavoidable” crash…

This driver, Mr. Dalpiaz, was driving while  IMPAIRED… His VISION was IMPAIRED… If he had consumed alcohol his vision would have become impaired… he freely chose to drive forward when he COULD NOT SEE…

In the OSHP crash file there are a series of these photos snapped from a car approaching the crash site.This is a photo from the OSHP crash file. Not sure what they were trying to show, other than “sun glare” near the crash site. Until someone takes the deposition of the officer though we won’t know for certain… There are always issues comparing a cheap, or nice, camera lens to the human eye as the human eye is far more powerful than any lens… However, if this truly represents the view of the motorist, it is very clear that he had no business barreling down eh road at 45 mph in a 2 ton pick up truck…

 

Frankly, to me, this is WORSE THAN DRIVING DRUNK… a Drunk Driver is TRYING to drive… the impairment to the drunk’s vision is caused by the effects of alcohol on the nervous system. The drunk driver may not fully realize, or be mentally capable of fully understanding, how impaired his vision is…

Here, the impairment to Mr. Dalpiaz’s vision was something he fully understood – he KNEW he “couldn’t see” – he was just driving on hopes and prayers that there was nothing in front of him… Unlike the drunk, though, Mr. Dalpiaz’s vision impairment was easily – immediately- correctable … just STOP THE FRICKING TRUCK… DON’T GO FORWARD IF YOU “CAN’T SEE” – Just  STOP STOP STOP – DON’T KILL ANYONE…

If you “can’t see” – don’t go barreling down the road at 45 mph in a 2 ton bowling ball…

But instead of the Prosecutor saying “IF YOU CAN’T SEE DON’T GO FORWARD” he says the opposite…  that driving while blind is an terrible “accident” – something that was “unavoidable” here – and not a criminal act under Ohio’s vehicular homicide statute. To the parents of the child who did NOTHING WRONG and was killed when the 2 ton truck being operated by the blind motorist slammed into him the prosecutor extends “condolences” –  too bad, so sad… sorry your kid got killed, but this was merely an accident… “unavoidable”…

Back in 2015, in the Cleveland area, a motorist driving a big pickup truck made a left turn across the path of five oncoming cyclists. He killed two cyclists and maimed three others. He blamed… wait for it… “sun glare”… The prosecutor there charged the motorist with Vehicular Homicide. I represented the lead rider and attended the full week-long criminal trial. While I felt the prosecutor could have tried the case differently, to me the facts clearly, unambiguously pointed to guilt… the jury saw otherwise and acquitted the driver.

While we were successful in prosecuting the civil case against the pickup driver, it’s possible that the prosecutor saw the Cleveland verdict in the criminal case as something to be wary of… I don’t know – this was not brought up in any report I’ve seen about the New Philadelphia crash… I DO know that failing to even TRY to prosecute these DWB – Driving While Blind -cases sends a horrible message to the family of William Morris… and to the cycling and pedestrian communities of Ohio… that your lives are unimportant – that we’re not going to protect you – that we’re not going to try to deter people from driving while blinded by sun glare – that “sun glare” is a defense to killing a young boy…

We, the cycling community, continue to mourn the death – the needless death – of William Morris and hope his family can find some comfort …

 

Printed from: http://www.ohiobikelawyer.com/bike-law-101/2018/06/sun-glare-cant-see-kill-a-kid-no-problem-at-least-in-new-philadelphia-ohio/ .
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