ASU doctoral student killed in Tempe crosswalk crash

“Left Cross” collision

[ 11/24 Updates on this shocking crosswalk fatality continue to ooze out from Tempe police, as the grieving family of Xiaoying Wen came to Tempe from China seeking answers; “Tempe police said both had the green light, but Wen failed to yield, and Tempe city law dictates that bicyclists must yield to motorists”. See below for this bad local law. LAB Bike Friendly GOLD? ]

The 11/21 News story says the crash occurred ‘last week” ? news media seems to report less and less.
Date:  [Thursday 11/16/2017 ~ 4:15pm per comment below] Location: intersection of Rural Road and Vista del Cerro Drive
This is a ‘T’ intersection with Rural running north and south, and Vista del Cerro running only to the east of Rural. Notably there is no crosswalk on the north side of Vista del Cerro; signs indicate peds must use the marked south crosswalk.

Tempe Police for some reason, haven’t released any of the particulars, the news story says without explanation “Tempe police said the truck driver had the right of way”; I don’t know why police didn’t release relevant details. Seems odd. The news story linked below was updated on 11/23 with a statement from Tempe Police:

…both the bicyclist and driver of the vehicle had a green light. Please keep in mind that bicycles are not afforded any legal protection by a crosswalk or a walk sign because they are not pedestrians.

Cyclists are subject to the same rules as vehicles and are required to yield when leaving the sidewalk and entering the roadway, just as cars are required to do. As a result, the driver of the vehicle was not cited since he had the right of way.

Based on that statement [but see Tempe Local Law, below], it appears Tempe Police are unaware of Maxwell which says, under state law,  bicyclists in a crosswalk are more-or-less pedestrians. (in Maxwell, a right-turning motorist struck and bicyclist where both had “a green light”; the motorist was held at fault, and the bicyclist was held to not be in violation). This is the same mechanics as Madaline Pila fatality in Phoenix; apparently Scottsadale police understand Maxwell, but Phoenix and Tempe Police do not.

According to the news piece video, according to a colleague (referred to only as “the professor”) of the victim the victim was eastbound in the south crosswalk (of Vista del Cerro. In other words, he was traveling the “right” way; that’s in quotes because crosswalks have no correct direction and in any event would have been traveling in the correct direction relative to adjacent traffic had this been a through road) traveling with “his own green light” (probably actually referring to a walk signal), and the driver “didn’t wait for him to get across”. The driver, then must have been making a left from Vista del Cerro onto southbound Rural.

Tempe Local Law

The City of Tempe also has some odd local ordinances that can adversely affect bicyclists on sidewalks (and in “bicycle lanes” and “bicycle paths” — yet LAB sees fit to award the City a “Gold” level?);

Sec. 7-52. Riding on sidewalks or bicycle lanes.
(d) Any person riding a bicycle on a bikeway, sidewalk or bicycle path that is about to enter or cross a roadway shall yield the right-of-way to all traffic on such roadway.
(quoted here without the ebike updates)

I don’t know if that is in play here; but it’s worth mentioning. [as thinks turn out, yes it is in play and very much worth metioning, per the 11/24 news story update (emphasis added) “Tempe police said both had the green light, but Wen failed to yield, and Tempe city law dictates that bicyclists must yield to motorists”]

It appears that Tempe ordinance 7-52 is not carte blanche as the Tempe PD statement says, but rather meant to apply a similar standard to bicyclists as state law applies to pedestrians entering crosswalk:  §28-792. Right-of-way at crosswalk… pedestrian shall not suddenly leave any curb or other place of safety and walk or run into the path of a vehicle that is so close that it is impossible for the driver to yield”.


We all like there to be zero bicyclist fatalities…  bike fatals in Tempe are quite rare, you can see a synopsis of the 5 fatals over the past 8 years here. Many of the five involve crosswalk riding; though usually going the “wrong” way.

 


 

ASU doctoral student, renowned pianist Xiaoying Wen killed in Tempe crash
Clayton Klapper 6:50 PM, Nov 21, 2017
…Tempe police said the truck driver had the right of way during the crash at Rural Road and Vista del Cerro Drive, but friends of Wen say the light at the intersection is timed so that the driver and Wen both had a green light when the crash happened.

 


A (also new/late; published on 11/22) Fox News story similarly states:

According to police, the driver who hit Wen was not cited. Cyclists are required to yield when entering a crosswalk

It also annoyingly doesn’t say what date or time of day the crash occurred.

 


Xiaoying Wen was an accomplished concert pianist

Crash Reports

crash report info goes here when/as available.

This is what’s known as a “left cross” crash. In PBCAT (FARS), it should be listed as

  • crash group 210, Motorist Left Turn / Merge
  • crash type 212, Motorist Left Turn / Opposite Direction

The crash group/type is independent of whether the bicyclist is traveling on the roadway vs. the crosswalk. The bicyclist’s position is noted in a separate field in PBCAT/FARS, as is the bicyclist’s relative directions (“with traffic”).

Crash History

Police-reported incidents, listing those cross-streets, 2009-2016 inclusive:

Bicycle Ped Motorist Motorcycle
18 4 134 6

 

select SUM(sF_Bicycle), SUM(sF_Pedestrian), SUM(sF_Motorist), SUM(sF_OtherUnk), SUM(sF_Motorcycle) from incident where (OnRoad LIKE "Rural%" and CrossingFeature LIKE "Vista Del%") OR (OnRoad LIKE "Vista Del%" and CrossingFeature LIKE "Rural%");

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Sidewalks and Bicycles

It should be noted that bicyclists traveling on sidewalks can be a safety concern for pedestrians; but won’t be discussed here.

Safety for bicyclists traveling on a sidewalk in general is difficult to achieve because they are less likely to be noticed at crosswalks and driveways by drivers turning and crossing.

That being said there’s no reason a bicyclist traveling at a slow-enough speed is any more a safety concern than that of a pedestrian walking in a driveway or crosswalk (marked OR UNMARKED); where normal rules-of-the-road apply and pedestrians have right-of-way.

Tempe, and more recently Yuma, have adopted a severe standard for bicyclists at crosswalks; my way of thinking is much more inline with this quote from a state of Washington decision (the state laws of WA and AZ very similar in this area), my emphasis added:

Our case law evidences the strong level of protection afforded to those traveling in a marked crosswalk… Those traveling in a crosswalk rely on their favored status to cross safely.
Common sense dictates that bicyclists be included in those protections. Otherwise, a driver’s duty to yield to those in a crosswalk would depend on the type of crosswalk user, resulting in dangerous confusion for motorists and crosswalk users alike.
— Pudmaroff v. Allen, 89 Wn. App. 928;  951 P.2d 335; — Wash. Court of Appeals, 1st Div. 1998

Pudmaroff goes on to note that “Users of crosswalks must exercise due care and caution for their own safety and may not suddenly dart in front of traffic”, a re-statement of our  §28-792. Right-of-way at crosswalk… pedestrian shall not suddenly leave any curb or other place of safety and walk or run into the path of a vehicle that is so close that it is impossible for the driver to yield”.

Tempe’s local modification can result in “dangerous confusion for motorists and crosswalk users alike”; with crosswalk users being not just pedestrians and bicyclists, but skaterboards, wheelies, strollers, etc, etc.

It should be noted that the legalities of bicyclists riding on sidewalks, driveways, and crosswalks is permissive under Arizona’s state laws; and that the rules of the road for drivers of vehicles do not apply to those bicyclists. We know the former because there are no statutes prohibiting it, and the latter because of Maxwell. The next layer, local laws, adds a whole new layer of confusion because different cities have taken completely different rules;the most obvious one being sidewalk cycling unless posted is banned in some cities (e.g. Tucson, Prescott), but allowed in most others (e.g. Tempe, Phoenix, Mesa, Scottsdale, Chandler, Glendale). As well as additional restrictions, e.g. the direction of travel is stipulated only in Tempe and Yuma.

There are no known localities anywhere in AZ where dismounting is required at crosswalks (or driveways).

I noted previously that ADOT’s 2011 BSAP (Bicycle Safety Action Plan )  recommends state-level sidewalk law clarifications, which seem like a worthy endeavor, given the huge proportion of sidewalk-related collisions, along with the current legal murky morass that currently exists when cyclists who cycle on the sidewalk subsequently collide with vehicles in crosswalks and driveways.

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3 thoughts on “ASU doctoral student killed in Tempe crosswalk crash”

  1. The accident happened on Thursday, November 16, at around 4:15 PM on the intersection of Rural and Vista del Cerro Drive as described above.

  2. abc15.com Unfortunately, the video doesn’t match very well to what is in the text, the text (pasted below from the article) is more clear; the bit from the video about how “we checked with Phoenix, Mesa and Scottdale and they all are like the state law” is unclear what they mean or who they talked to; as mentioned above, I know for a fact that Phoenix police don’t understand Maxwell, here’s the text:
    TEMPE – The family of Xiaoying Wen, an internationally acclaimed music student at Arizona State University, wants answers after their son was hit and killed while riding his bicycle in Tempe.
    Police said Wen failed to yield to oncoming traffic. The driver of the pickup truck that hit and killed Wen, was not cited – something Wen’s family and friends are struggling to understand.
    Wen’s parents Dengjun Liu and Shunlun Wen are still distraught after their son’s death. The family sold their home to help fund Xiaoying Wen’s musical education. He had received a scholarship from ASU and the government in China to get his PhD and teach music in China.
    Wen was one semester away from completing his doctorate when he was killed.
    Phoenix attorney Jay Ciulla represents the Wen family and says authorities got it all wrong.
    Ciulla said Tempe police are not following Arizona State law that requires all drivers to yield to bicyclists, just as they would a pedestrian.
    Ciulla cites an Arizona Supreme Court from 37 years ago, that gave bicyclists the same protections as someone walking down the street. But police say, Tempe law states bicyclists must yield to drivers, even if both have the green light.
    In this case, the driver who hit and killed Wen, did not face any charges since Wen failed to yield to a motorist.
    In a letter addressed to police, Ciulla said he worries the legal issues surrounding this case would “constitute a public safety issue and put the bicycle riding public in danger in the City of Tempe.”
    Ciulla also said the police “misapplication of the law compromises the pursuit of justice for Xiaoying.”
    Ciulla said Wen was lawfully riding his bicycle in the crosswalk when he was hit by the truck that was turning left onto southbound Rural road
    Ciulla also states “your legal conclusions defy common sense analysis.” He goes on to say “The City of Tempe which bills itself as ‘one of the leading bike communities in the country’ has ironically taken the absurd position that it is open season for motor vehicles to strike bicyclists in crosswalks. It appears that scooter riders, skateboards, tricycles, wheelchairs, baby carriages, and toy wagons in crosswalks are not safe either.”
    ABC15 reached out to Tempe police for a comment. While police did not respond to any of the concerns pointed out by Ciulla, they issued a statement that reads:

    “Our hearts truly go out to the family as a result of this horrible accident. We can only imagine the pain the family is going through at this time.
    The case was turned over to the Maricopa County Attorney’s office earlier today (12/05/17) for review. We do not have a time frame for the completion of the review. Thank you for reaching out to us to follow up on this case, and again, our sincere condolences to the family.”

    Ciulla says he hopes the City of Tempe will look at its ordinance, and that the police department will review it, and get proper training on how to enforce it.
    He said the family is prepared to file a civil lawsuit in this case, if no charges are recommended by the county or city attorneys’ offices.
    Tempe city councilman Kolby Granville requested information from Tempe police, and is reigniting the conversation on bicycle safety following Wen’s death.
    “This is something that is always on our mind on how we can do better,” said Granville. “If there is a lesson we can learn here, that we can apply citywide, we are absolutely going to do that.”

  3. This comment appeared on Kolby Granville’s thread about Wen’s death:
    There are two problems here. First of all, it is too late for Wen to debate this Tempe law now that he has passed away. The time for debate, outrage, and a legal challenge should have been before the law was passed.
    Secondly, governments in general will have to realize that you simply cannot regulate bicyclists unless there are some teeth in the laws. As it stands, bicyclists are glorified pedestrians. Neither activity is licensed, and so what is at stake? Can’t lose a license you don’t have. Motorists obey traffic laws because they are tracked, subject to enforcement, and can suffer real consequences if they violate those laws which are enforced. Cyclists do whatever in the world they want. They run red lights, they ride upstream toward oncoming traffic, they whiz in and out of streets and driveways, they ride cloaked in darkness at night, and none of them have helmets or even a bell to signal other pedestrians.
    I will not say that Wen deserved to die, because he was probably ignorant of the laws which affected his situation and he was just trying to get somewhere on his environmentally friendly and economical transportation. It is a tragedy that he had to be a victim. But he could have taken steps to prevent his own tragedy. He could have been more safety-conscious and aware of his surroundings. Traffic accidents are almost always a cascading domino chain of mistakes. Sure, it was the driver’s mistake, too. But it is just that he was not cited, because the Tempe Police are following Tempe law. What more can they really do?

    You have many nuggets of truth, but your view that motorists are all duly licensed, fastidiously following all laws, vigilantly maintaining a constant lookout, and fearful of consequences while all bicyclists are always breaking laws in flagrant disregard for their own safety is cartoonish, and unnecessarily ‘us’ vs. ‘them’. And holds us back from improving traffic safety for all, including motorists.
    The vast majority of the THOUSANDS of traffic collisions yearly in City of Tempe (EXCLUDES freeway, there are thousands more MV crashes on the Tempe freeways) involve only motorists, less than four percent or so involve a pedestrian or a bicyclist. (In case you are interested, the counts for 2016 were 4,610 MV-only / 121 MV-Bike / 65 MV-Ped ).
    http://azbikelaw.org/tempe-traffic-collisions/

    Consequences? Really? Motorist William Epperlein is awaiting consequences for his actionslast year. Just a few miles south of here. Police say he was driving on a suspened license (indicating some past, repeated wrongdoing motoring) when he mowed down a mother and children in a crosswalk while he ran the red light.
    This will likely net him some fines and possibly a few days in jail

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