Legally Speaking: “Ellen’s Law”

photo credits @ Cycling Canada

article by Bob Mionske

“If I had to die for the roads to be safer for other cyclists, then I would be OK with that.”
-Ellen Watters

We all know what can happen out on the road, but we don’t think about it much. Even fewer of us do anything to make it better. Partly, we all know that hazards come with the territory. And partly, the rigors of our sport make us some of the toughest athletes on the planet, with an indomitable spirit that is stoic in the face of hardship.

Still, we share the roads with large, multi-ton machinery operated by drivers in various states of incompetency, distraction, inebriation, and entitlement about us being “in their way” on “their road.” And when these drivers endanger our lives, either carelessly or intentionally, we’re reminded of the dangers we face. Like all athletes, roadies accept the inherent risks of the sport we love, but one risk we don’t accept is when our fellow citizens take casual, and sometimes deliberate risks with our lives.

Canadian pro Ellen Watters was too happy a spirit, and too tough an athlete, to let the hazards of dangerous drivers take her eyes off the prize, but she was aware of them, and wanted to make a difference, to help make the roads safer for other cyclists. And now, her vision of safer roads may come to pass, although at a terrible price. On December 23, Ellen Watters was on a 90-mile training ride in Sussex, New Brunswick, when she was hit from behind and critically injured. Five days later, Ellen, described by friends as “a complete force of joy and love” with a “lust for life,” passed away.

In memory of Ellen, her family and friends are lobbying for the passage of “Ellen’s Law,” which would establish a 1-meter passing rule for New Brunswick. Like the 1-meter passing rule that became law in Ontario in 2015, “Ellen’s Law” would require motorists to leave at least a 1-meter distance between their car and cyclists, with drivers convicted of violating the law subject to a $110 CAD fine and two demerit points on their driver’s license.

It’s a sensible addition to the law. It only requires motorists to use care and sufficient clearance when passing cyclists. And yet in Ottawa, the law has stirred an outpouring of anger from drivers who feel infringed upon by a law that requires them to drive safely. Even passing a law as reasonable as requiring people to be careful while operating lethal machinery requires mountains of data — Canadian attorney Patrick Brown notes that he had no traction in getting a 1-meter law passed “until I was able to initiate a full coroners’ review (with our provincial coroners office).” And in New Brunswick, it may take Ellen Watters’s untimely death to convince lawmakers to act.

This is upside-down. The law should require drivers to be careful, without us first having to provide mountains of data and broken bodies of the victims of careless driving. The legislatures should require advocates of close passes to prove that close passes are safe and that nobody will be injured or killed if the law allows close passes. And law enforcement should be driving home the safety message with vigorous enforcement of the 1-meter law.

But in Ottawa, attorney Patrick Brown obtained the statistics on enforcement of the 1-meter law and was appalled to discover that it is not being enforced, despite his daily observations of violations while riding in the city. And in New Brunswick, it remains unexplained what would cause the driver to crash into Ellen Watters on a clear, sunny day. To date, charges have not been laid against the driver; however, the investigation continues. But at the end of the day, we need a satisfactory explanation of how this tragedy happened, and appropriate charges if warranted by the facts of this case.

For the rest of us, we can look to Ellen Watters’s example, and do our part to make the roads safer for everyone. We can all advocate for better laws, and appropriate enforcement. We can all support the efforts of the bicycle advocacy organizations that work on our behalf every day.

In Canada, you can support the work of the Share The Road Cycling Coalition, which was founded by Ontario Legislative Member Eleanor McMahon following the 2006 death of her husband, Constable Greg Stobbart.

In the United States, you can support efforts to pass 3-foot laws. Wisconsin was the first state to pass a 3-foot law, in 1973. Since then, half of the states have passed similar laws, but half of the states are still dragging their feet. If your state doesn’t yet have a 3-foot law, get involved; it shouldn’t take more deaths to get drivers to use care while operating their vehicles.

Three-foot laws aren’t a panacea; some drivers will continue to make close passes. But as safe passing laws take root around the world, more drivers become aware of safe passing distances, and how to safely pass a cyclist is becoming part of the discussion. Increasingly, we’re seeing the message appear on billboards, road signs, and driver’s tests. And in Ottawa, when outraged drivers complained about having to give cyclists 1 meter, police quickly set them straight. Drivers can cross the yellow line to pass when it’s safe to cross, and until it’s safe to pass “The motorist has to stay behind the cyclist.”

This growing awareness of cyclist safety makes safe passing laws an important but underutilized way to make our roads safer, and it shouldn’t take more deaths to require drivers to use care while operating their vehicles. And that really is the point — by continuing Ellen’s passion for safer roads, we can keep her joyous spirit alive for this and future generations of cyclists. It’s what she would have wanted.

“If you want a smile like mine, you have to get on two wheels.”
– Ellen Watters

Now read the fine print:

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic Games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc.).

Mionske is also the author of “Bicycling and the Law,” designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem. If you have a cycling-related legal question please send it to Bob, and he will answer as many of these questions privately as he can. He will also select a few questions to answer in this column. General bicycle-accident advice can be found at bicyclelaw.com.

Important notice:
The information provided in the “Legally Speaking” column is not legal advice. The information provided on this public website is provided solely for the general interest of the visitors to this website. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the website without first seeking the advice of legal counsel.