A bicycle advocacy group contends Boston police should not have cleared the truck driver involved in the fatal accident of a cyclist in the Back Bay in 2015, a death that intensified the debate about bicycle safety in the city and led to the creation of a protected bikeway.
The statewide coalition MassBike says that video evidence shows the trucker acted recklessly when he turned right onto Beacon Street from Massachusetts Avenue into the path of Dr. Anita Kurmann, 38, who was crushed by the trailer’s rear wheels.
MassBike said the driver, identified in court records as Matthew Levari of New Jersey-based Levari & Sons, was required by state law to stop at the intersection before making the turn because he had passed Kurmann earlier as the two were travelling across the Mass. Ave. bridge into Boston.
Massachusetts law prohibits drivers who overtake cyclists from subsequently making a right turn “unless the turn can be made at a safe distance from the bicyclist at a speed that is reasonable and proper.”
A video of the accident that MassBike received from law enforcement officials shows the truck rounding into the turn onto Beacon Street before hitting Kurmann. Using footage from traffic cameras, police investigators concluded Kurmann was at fault, adding that at the time she was riding in a bus lane, and not in the marked lane that cyclists can share with motor vehicle traffic.
“We think this is the most unfortunate example of victim blaming we can ever cite,” said Richard Fries, executive director of MassBike. The accident, he added, “deserves a day in court.”
(Note: We have edited the video below, which was provided by MassBike.)
On Tuesday, Lieutenant Michael McCarthy said the Boston Police Department stands by its conclusions.
“The facts remain unchanged. The actions of the operator were not and are not criminal in nature,” McCarthy said. He declined to address the requirement that drivers yield in situations like what MassBike described.
Jake Wark, a spokesman for Suffolk County District Attorney Dan Conley, said prosecutors saw no reason to pursue charges.
“The investigation did not reveal driver impairment, distraction, excessive speed, failure to signal, or disregard of a known risk,” Wark said.
“What it did make plain were the challenges inherent in operating such a large vehicle on city streets. As prosecutors, we welcome measures to make our roads safer for cyclists and pedestrians, but we have an ethical obligation not to charge a case we know we can’t prove.”
In their report, Boston police said the truck driver had his right turn signal on for eight seconds before making the turn, and that Kurmann was riding in a bus lane when she was struck, according to a copy provided to the Globe.
“The primary cause of this crash is the action of the victim, Ms. Kurmann, when she failed to recognize the turning truck and was outside of the truck driver’s field of view,’’ police investigators concluded.
But MassBike argued Kurmann had the right to be in the lane she was using. Moreover, state law says a motorist who causes an accident with a bicycle cannot use as a defense “that the bicycle was to the right of vehicular traffic.”
MassBike says Levari could have been charged with involuntary manslaughter or operating to endanger. The group also questioned why Levari wasn’t treated by police as a hit-and-run driver, because he did not stop after striking Kurmann and did not contact police until late that afternoon in August 2015, from Pennsylvania.
Cycling advocates argue the decision shows officials are loath to prosecute drivers who hit cyclists. Nine of 32 bicycling deaths since 2015 have involved large vehicles, and none resulted in charges, according to MassBike.
“We’ve worked for 40 years to get a share of the road. We still have to work hard to get a share of the mind,” Fries said. “We’re at the table in a lot of decision-making. Most of it has to do with engineering. . . . I personally, though, believe enforcement is still very far behind.”
Wark said the district attorney’s office has pursued charges in at least four cycling cases in recent years, one of which involved a garbage truck. However, a grand jury in 2014 declined to indict that driver.
Kurmann’s was one of several deaths that galvanized the cycling community over roadway safety. The anger about the investigation is just the latest flashpoint as advocates continue to push the city for more protections for cyclists.
In December, they formed a human chain along one side of Congress Street to separate cycles and cars on what they consider a dangerous stretch of the road where it crosses Fort Point Channel. And riders were furious with Boston Mayor Martin J. Walsh when he said last spring that cyclists and pedestrians shoulder some of the blame in fatal crashes.
MassBike is backing a legislative proposal that calls for improved convex mirrors on tractor-trailers that would give more visibility to drivers, side guards on trucks working under a state contract, and a standardized method of reporting bicycling-related injuries and fatalities statewide.
State Senator William Brownsberger, who sponsored one version of those proposals, said side guards on trucks could help prevent fatalities on right turns, because cyclists would be “swept aside instead of under the wheels.” However, his bill would limit the requirement for guards to trucks owned by the state or by contractors working for the state.
Following Kurmann’s death, a bike lane with plastic posts separating it from traffic lanes was installed on that section of Mass. Ave, the roadway was painted with traffic directions, and signs were installed that require motorists to yield to bicyclists and pedestrians.
But Alan Wright, a Roslindale cycling advocate who joined Fries at a press conference Tuesday, said the changes should have been made sooner.
“That improvement came because the bicycling community became very organized in putting a lot of pressure on the City of Boston to make the correct changes there. It’s still not a perfect intersection, but it’s a lot better,” Wright said. “But the bicycle community shouldn’t have to fight over getting these changes, and bicyclists be killed, in order for them to occur.”
A surgeon from Switzerland, Kurmann came to Boston in about 2012 to work in a research lab and spent succeeding years at Beth Israel Deaconess Medical Center and Boston University. She had been planning to return to Switzerland and was cycling to work on the morning of the accident.
Her family settled a wrongful-death lawsuit against Levari in 2017, but terms were not disclosed. The law firm representing the family declined to comment. A man who answered the phone at Matthew Levari & Sons also declined to comment.