Seattle has paid $3.5 million to settle a claim that the city created unsafe conditions on Second Avenue, where a turning truck killed bicyclist Sher Kung in 2014.

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The city of Seattle has paid $3.5 million to the family of Sher Kung, the bicyclist killed two years ago by atruck making a left turn along Second Avenue in downtown.

The payment resolves a claim that the city’s “failure to prepare an adequate traffic-control plan created dangerous conditions for bicyclists,” according to a claims list from the city’s risk-management division.

Kung, a 31-year-old attorney and new mother, was riding to work heading south on Second Avenue when a box truck alongside her turned left from Second onto University Street. Kung fell under the truck’s left front wheel.

When the Aug. 29, 2014, crash occurred, the city was less than two weeks away from improving its left-side bicycle lane on one-way Second Avenue, infamous for crashes and near-hits. It now provides a green signal icon for bicyclists, and it bans vehicle turns while bikes and pedestrians travel north-south.

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City staff and David Whedbee, a lawyer for Kung’s fiancée, said a confidentiality agreement precludes discussion of settlement details.

A check sent June 21 represents only its share of the settlement, which includes other parties, said Julie Moore, spokeswoman for the city Department of Finance and Administrative Services.

The city would not identify the other parties.

Driver not charged

The truck driver, working for Rubenstein’s flooring company, was not charged.

Investigators think the driver was textingabout 20 seconds before the collision, according to a case description by the King County Prosecuting Attorney’s Office. The truck’s left-turn signal was blinking. The driver wasn’t calling or texting at the moment of impact, according to the statement.

Prosecutors wrote that cellphone use, by itself, qualifies only as “ordinary negligence” under Washington state law, and doesn’t rise to the criminal level of recklessness or conscious disregard for the safety of others.

“Despite what we know about the use of phones and the distraction they present to a person driving a vehicle, Washington State law is almost silent about this danger,” said the analysis, signed by Senior Deputy Prosecutor Amy Freedheim. Freedheim is included in a coalition that is studying ideas to tighten the state’s distracted-driving laws, said Dan Donohoe, spokesman for the prosecutor’s office.

The case was kicked down to the Seattle city attorney’s office.

City lawyers considered a misdemeanor charge of negligent driving, under the 2011 vulnerable-user law meant to protect cyclists and pedestrians, said Deputy City Attorney John Schochet.

“After reviewing SPD’s investigation, our criminal division determined that there was not sufficient evidence to cite the driver.”

Kung is survived by her fiancée, Christine Sanders, and their young daughter, Bryn. Kung was an intellectual-property attorney for Perkins Coie, and was on the American Civil Liberties Union legal team that successfully challenged the “Don’t Ask, Don’t Tell” policy affecting gay and lesbian military personnel.

Other nearby cases

Two other local cases have raised the profile of bike safety this summer.

On Tuesday, the city of Mercer Island reached a $7.25 million, mid-trial settlement with an island resident paralyzed in an April 15, 2013, crash on her wooded side street, said her lawyer, Lawrence Kahn.

Margarete Chenoweth, then age 48, was riding downhill near her home, when she said her wheels hit a bump near the right edge of dead-end Forest Avenue Southeast. Moments later, she fell head first into a solid wood kiosk of mailboxes.

The city denies liability. It argued in opening statements that something other than the 2-inch high-water-diversion berm on the street is to blame because the mailboxes are 40 feet away. Also, Chenoweth recalled that she was waving at a nearby driver, taking one hand off the bike.

Asphalt rain diverters exist in 66 locations along residential island roads and in other Puget Sound area communities.

Kahn said cities should take notice and paint the berms for visibility. This sort of litigation fuels “the progress of safety in our society,” he said, similar to disputes over seat belts last century.

Mercer Island’s city attorney, Kari Sand, said the city believes the berms “are necessary for stormwater drainage,” and has no plans at this time to mark them. “There’s really no one-size-fits-all solution. They are different from speed bumps,” she said.

And a state appeals court ruled June 28, in a case from Port Orchard, that similar to driving a car, “cycling is a mode of ‘ordinary travel,’ and therefore the city has a duty to to maintain its roads for bicycle travel.”

That case involved Pamela O’Neill, injured in a fall while bicycle commuting through Port Orchard. Her side brought evidence of bumpy concrete and gaps as wide as four inches in the concrete panels of Sidney Road. A Kitsap County court dismissed the case, but appeals judges ordered that it proceed.

23 claims

In Seattle, 23 claims have been paid to bicyclists in the past five years, according to a list provided to The Seattle Times through a public-records request.

The Kung case was one, and the other 22 totaled $108,267 for damage or injuries caused by potholes, cracks, and a complaint of poor signage where a freight-rail yard meets Myrtle Edwards Park. These do not include court cases, and the Kung estate didn’t file a lawsuit.

The Kung claim form initially requested $18 million, alleging the city operated Second Avenue unsafely during bike-lane construction. Pavement markings were worn out, a clear bike lane wasn’t signed, and the city lacked a temporary traffic-control plan, the claim said.

Whedbee said a confidentiality clause bars him from discussing settlement details. He said the incident ought to provide a wake-up call that work projects shouldn’t “exacerbate the danger” on roadways.

Randy Rubenstein, owner of the flooring company, said “it was a very unfortunate incident,” and he can’t discuss it further.

Ten days after Kung’s death, the Seattle Department of Transportation (SDOT) finished its Second Avenue bikeway, where a row of parked cars shields the cyclists. Since then, traffic engineer Dongho Chang has adjusted the signal layouts and parking zones, and points where the lane crosses through parking-garage traffic, as well as by hotel guests on foot.

Seattle transportation director Scott Kubly said the city is committed to the “Vision Zero” policy to eliminate traffic deaths and injuries. As part of that, SDOT is rewriting its manual on how to move travelers through construction areas. Kubly issued a directive that requires water-filled barricades now be usedto build temporary walkways next to tower projects.

The $3.5 million settlement was paid by Seattle’s self-insurance fund, which is to be gradually reimbursed over about five years by SDOT’s yearly insurance contributions, city staff said.