A cyclist rides past a memorial of flowers next to a tree and newly retired parking meter at Howard and Sixth streets on Friday March 15, 2019, near where cyclist Tess Rothstein was killed on March 8. (Kevin N. Hume/S.F. Examiner)

Driver who doored cyclist not likely to face criminal charges in fatal collision, attorneys say

After the death of a bicyclist in South of Market prompted outrage and street safety changes, advocates are calling for the person who doored 30-year-old Tess Rothstein to face criminal charges.

But attorneys who work in the field do not expect prosecutors to file charges against the yet-to-be identified driver who opened the door of a parked car near Sixth and Howard streets last Friday morning, resulting in Rothstein being hit by an oncoming truck.

“I just don’t think it’s there,” said John Hamasaki, a defense attorney who has represented clients charged with vehicular manslaughter. “Not every horrible act and outcome in society is punishable criminally, and I think that’s probably a good thing.”

“I’ve never heard of a dooring case being criminally prosecuted,” said Michelle Weiss, managing attorney with Bay Area Bicycle Law, a law firm that represents bicyclists in civil matters.

Rothstein, a Berkeley resident who worked at Airbnb and Medium, was riding a Ford GoBike in a bike lane down Howard Street when someone opened the door of a white Lexus. Witnesses said she dodged the door and swerved into the path of a commercial truck.

The truck crushed her helmet.

Perhaps part of the reason Hamasaki and Weiss have never heard of a person being charged for dooring a cyclist, even if it resulted in death, is because the state statute for vehicular manslaughter requires the person who committed the unlawful act to be “driving a vehicle.”

“If you’re opening the door you are exiting the vehicle, so you’ve stopped the act of driving,” said Hamasaki, who is also a police commissioner.

While vehicular manslaughter requires gross negligence, prosecutors would have to prove the higher standard of intent if they tried to seek other charges such as aggravated assault.

The San Francisco Police Department is investigating the death. Alex Bastian, a spokesperson for the District Attorney’s Office, could not immediately confirm whether police have forwarded the case to the office. The DA cannot make a charging decision until a case is presented.

This week the San Francisco Municipal Transportation Agency installed posts as a temporary barrier between cyclists and car traffic on Howard Street between Fifth and Sixth Streets, where Rothstein died.

Still, some advocates are calling for charges to be filed in part because they believe it would also improve street safety.

Bert Hill, who trains Muni operators and others on the rules of the road for bikes, and has sat on the San Francisco Bicycle Advisory Committee for 15 years, said criminal charges could serve as a warning to drivers to watch out for cyclists more frequently.

“It would be widely broadcast and get attention,” Hill said.

Hill hoped the increased awareness could also encourage local drivers use the Dutch Reach, a European method of opening a car door in which a driver uses the hand opposite the driver-side door. That habit forces a driver to turn themselves fully toward the road.

“By turning the other way, you’re supposed to look,” Hill said.

Other remedies

Police could issue a citation to the person who doored Rothstein for a violation of California Vehicle Code Section 22517.

The law states, “No person shall open the door of a vehicle on the side available to moving traffic unless it is reasonably safe to do so and can be done without interfering with the movement of such traffic.”

“The Vehicle Code is explicit,” Weiss said. “The onus is on the person opening the door. Cyclists do not have to dodge doors.”

But advocates say police rarely cite people who door bicyclists. Meanwhile, the number of bicyclists who are doored appears to be on the rise, according to bicycling experts.

Jason Henderson, a San Francisco State University urban geography professor who specializes in bicycling, attributed the apparent increase to the prevalence of ride-hail vehicles from Uber and Lyft, as well as a “cultural acceptance” of the fact that police rarely issue minor citations.

“The doors are swingin’ open on all sides without anybody paying attention,” Henderson said. “They’re just going ‘phoom,’ flying open.”

Henderson himself was doored while riding his bicycle home from SFSU just three years ago. He said firefighters and police responded quickly, but officers declined to ticket the man and woman who doored him until he loudly, and persistently, insisted that they do so.

“I said ‘this guy and his wife doored me and they need a ticket right now,’” Henderson said. “They weren’t happy with that. Then one guy came forward and said, ‘I’ll do it.’”

A spokesperson for the SFPD could not confirm whether police issued a citation to the person who doored Rothstein and also declined to provide details about the person involved.

“We can’t provide any information right now and the case is still open for investigation,” said police spokesperson Officer Joseph Tomlinson.

Regardless, Weiss said the family of Rothstein could have a strong civil lawsuit against the person for the wrongful death of their daughter to recover medical expenses and seek damages for loss and suffering.

“There’s really almost no defense that the cyclist would be at fault,” Weiss said. “All you have to do is check before you open your door. It’s really unfortunate how frequently it happens.”

The family could also sue the driver of the truck that ran Rothstein over after she was doored, according to Weiss.

What we know so far

At the Police Commission on Wednesday, Police Chief Bill Scott nearly mirrored the accounts of witnesses who saw the collision. Scott said the driver of a parked vehicle opened a door into Rothstein.

“The cyclist was knocked off of the bike and unfortunately was hit by a vehicle that was traveling next to her,” Scott said.

Scott said both drivers stayed at the scene.

“It was a very unfortunate incident,” said Scott, who added that The City has “had a pretty rough year to date with traffic fatalities, hit and runs, mainly with pedestrians.”

Three months into the year, Rothstein is the only cyclist who has been killed in a traffic collision. Last year, three cyclists died in the Tenderloin, South of Market and on the Embarcadero.

mbarba@sfexaminer.com

joe@sfexaminer.com

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