Two Traffic Fatalities: One a Homicide, the Other an “Accident”

Two people died in separate but similar motor vehicle crashes in the city over the weekend. The drivers accused of causing the deaths of Robert Pelicone, 22, and Julia Thomson, 24, were both speeding; both fled after their respective crashes; and both drivers were soon arrested and charged with DWI and leaving the scene.

juliathomson.jpgThe cases differ in two crucial respects. The driver involved in the crash that killed Pelicone was also charged
with criminally negligent homicide; the driver identified as Thomson’s killer was not. Pelicone was a passenger in the wrecked vehicle; Thomson was a pedestrian trying to cross the street.

This is no isolated instance, of course. Just last week a Greenwich Village pedestrian was killed by a driver charged with driving under the influence of drugs, but was not charged for killing 28-year-old aspiring actress Hope Miller.

On September 4, a driver arrested for running down and killing 7-year-old Christian Acteopan was charged with leaving the scene; another driver who hit Acteopan after the first vehicle stayed at the scene and was not charged.

On September 1, Ismael Mercado, 47, was "accidentally" run over on West 54th Street by a driver who was not charged.

The list goes on. The circumstances of each death are inherently different, and details are often not known or are overlooked, in part because of the way they are reported by the media or recorded by police. But the deaths of Mr. Pelicone and Ms. Thomson, assuming no additional charges are brought, offer a chilling snapshot of how city police and prosecutors value, and devalue, human life based on whether one is or is not inside an automobile.

Photo of Julia Thomson via New York Daily News

  • ddartley

    And if the driver stays at the scene, I think he gets a good citizenship award.

    Would that motorists killed only themselves.

  • Mhairi MacDonald

    Juila was an amazing and vivacious girl, who will be remembered as living life to the full. You will be missed

  • Daniel from Brooklyn

    NYC’s district attorney’s need to get their heads out of their arses and start treating pedestrian killings with the level of seriousness they deserve. A good first step would be a complete reform of the way that NYPD investigates these cases and making data about car crashes, injuries and fatalities publicly available on precinct web sites.

  • anon

    How unequal it is? A couple months ago, a cab driver started proceeding aggressively through a (four way stop) intersection while I was still in the crosswalk. I turned to the cab and said/yelled “What, are going to hit me?”

    I was grabbed from behind without warning, my skull was split open (four staples) and I was pushed to the ground. Then I heard someone yelling “police!”.

    After a trip to the hospital, I was arraigned on two felony charges.

  • Mark Fleischmann

    The DOT could cut the carnage in half by automatically installing speed bumps at the site of any pedestrian death. Giving every death 10 seconds of airtime would raise public consciousness considerably — though of course, the newscasts are funded by car ads.

  • John Hunka

    According to this article about Bleecker Street from the New York Times, “Most traffic-calming advocates believe that people aren’t safe or comfortable on streets with cars traveling faster than 20-25 miles per hour, yet many city traffic lights are timed for cars going at least 38 m.p.h.” Considering the huge number of pedestrians throughout New York City, it’s hard to understand how DOT can justify timing lights for any speed above 25 m.p.h.

    http://www.nytimes.com/2007/09/30/nyregion/thecity/30blee.html

  • John

    Mark – it doesn’t seem like such a great idea to put speed humps (speed bumps are not used on public streets) on thoroughfares with buses or high volumes of emergency vehicles.

  • John Hunka

    This snippet is from the Full Board Minutes of Community Board Two’s meeting on April 19, 2007. Does anyone know if DOT has done the study called for by the resolution?

    ” 4. Pedestrian Safety Concerns at the Intersection of West 11th St., Greenwich Ave. and 7th Ave.
    WHEREAS, vehicular traffic turns southeast from Seventh Avenue into Greenwich Avenue at the same time pedestrians are crossing the street, threatening pedestrian safety; and
    WHEREAS, this and other pedestrian and vehicular conflicts appear to be occurring because of traffic light timing in that area where several streets converge in a complex intersection.
    THEREFORE, BE IT RESOLVED that CB#2, Man., requests that the New York City Department of
    Transportation conduct a traffic light synchronization study at the intersection of West 11th Street, Greenwich and Seventh Avenues in order to recalibrate the light signal sequence to ensure
    pedestrian safety.
    Vote: Unanimous, with 47 Board members in favor.”

  • ddartley

    That’s a great article about Bleecker Street, Hunka.

    Bleecker in Manhattan would actually be a GREAT street to strip of all cars.

    It would also probably improve the busy nightlife there: if the bars and clubs there actually drew locals rather than people arriving by car or taxi, they would become a heck of a lot less corny than they shamefully currently are, don’t you think?!

  • lee

    woonerf bleecker st. anyone who drives down bleecker is screwed anyway. it can take 20 mins to get from 7th to broadway when the bars and restaurants are busy.

  • Interesting article and comparison but not too surprising. In Austin, Texas a motorist can freely kill anyone riding a bicycle and the media and police report will say it was the cyclists fault for being on a bicycle.

  • ddartley

    You’re right, Lee–cars on Bleecker Street often just stand, idling their engines, for an eternity before they manage to move ten feet.

    Also, I regret being facetious in my last comment. What happened to Julia Thompson in particular hits close to home for me, and it’s awful.

  • Angus Grieve-Smith

    I’m wondering whether it would be more productive to work to change the policies of the prosecutors or of the police. If the police filed homicide charges, would the DA prosecute them? If the police thought they could reasonably get a conviction, would they file homicide charges?

    DAs are elected, but the races tend not to be very hotly contested or well-publicized (at least here in NYC); police chiefs are theoretically answerable to the mayor, but there are so many issues involved that an otherwise pro-pedestrian mayor may allow a police chief to maintain anti-pedestrian policies.

  • Andy B from Jersey

    Wow! This Blog keeps scaring the shit out of me with the stories about the NYC Gestapo (#5’s post especially, like to know more).

    All these stories make me want to stick to my routine of going down to Philly, cruising the city on my bike and spending my hard earned money down there on a Saturday night instead of in NYC (It goes much further and the beer selection is better anyway!). I never hear stories like these coming out of Philly.

    Has anyone ever thought about contacting a civil rights attorney to file a massive class action lawsuit against the city, the DA and the police (especially the police). There definitely a pattern of selective enforcement and prosecution of law.

    If I went out into the street and started recklessly shooting a gun then hit and killed someone, I’d be prosecuted to the furthest extent of the law and would probably be charged with murder. If drunk, I definitely would be. But do the same with a car and hit a pedestrian or cyclist and you would be hard pressed to do time even if drunk. But kill another driver or passenger then your likely to do time. This should be the basis of any lawsuit.

  • Andy B from Jersey

    Just read that Thompson was from Scotland. Contact the British Embassy and make them aware of this discrepancy in prosecution!

    Make it an international incident!

  • galvo

    http://www.dailysentinel.com/news/content/news/police/stories/2007/10/01/cops_police_report_1001.html

    Texas reactions to bicyclist, if they dont run them over they rob and knife them.
    “Aggravated robbery, 400 block of West Seale Street. A man riding his bicycle was attacked by a man with a knife, who took his bicycle and cash. The suspect was driving a dark colored Chevorlet pickup.’

    Read some comments on gothamist about this vehiclecide, seems she was exiting into the traffic side of the street. she was Scottish, this would be the correct way to exit when driving on the left side of the road.
    nevertheless less the speeding and drinking was th primary factors in the instance.
    we are back to the excessive speed limit in NYC, a 20 mph driver would have had time to react and stop.

  • Angus Grieve-Smith

    There are two issues of discrimination here. The first, that motorists who “accidentally” kill people are often not charged the way that people who “accidentally” kill other people with knives, guns, poison, etc. are. Especially if they stay at the scene and cooperate with the police. That pattern is pretty well-established here on Streetsblog.

    The second issue is one that Aaron and Brad have just raised yesterday: that motorists who kill pedestrians aren’t charged the way that motorists who kill other people in cars (and maybe in buildings too?) are. Although Thomson had just gotten out of a car (taxi); maybe she should have stayed inside forever?

    That means that cops are discriminating against pedestrians twice: once for being killed by motorists crushing their bodies instead of (say) by construction workers dropping something on them, and a second time for having the brazen gall to walk someplace. There may also be discrimination against pedestrians for crossing the street instead of staying on the same block until they can get into a car.

    It would be great to see some broad data documenting these patterns of discrimination.

  • I think Brad has it exactly right. Start charging drivers more severely when they hit pedestrians, and drivers’ conduct will start changing for the better.

    It’s unacceptable that apparently drivers are treated more leniently when they hit pedestrians. I had no idea.

  • ln

    Time’s Up! will be stenciling a memorial for Julia Thompson after this event. Please join us for both memorials.

    Tuesday, October 2, 6:30pm
    Houston Street and 6th Ave
    On September 26, 2007, 28-year-old Hope Miller was hit and killed by a driver on Houston St. How many more deaths on Houston Street have to happen before the city takes action? Join Time’s Up! to honor the memory of Hope Miller and demand that the city make Houston Street safe for pedestrians and cyclists. Bring flowers and candles.

  • george

    We need to do what a number of European countries’ laws do – give the presumption of guilt to motorists in any vehicle-pedestrian or vehicle-bike crash, similar to here how the rear motorist is almost always culpable in a rear-end vehicle collision.

  • alex

    Below is the code for failing to yield to a pedestrian at a yield sign. Is there a section that would apply for pedestrians in a crosswalk crossing with their light?
    If so, why hasn’t it been applied in the numerous ped-auto collisions in the city?
    I am a scientist and not a lawyer. How does “prima facie evidence” affect the decision to press charges against a motorist?

    New York State Consolidated Laws
    Article 26
    S 1142.b
    The driver of a vehicle approaching a yield sign shall in obedience to such sign slow down to a speed reasonable for existing conditions, or shall stop if necessary as provided in section eleven hundred seventy-two, and shall yield the right of way to any pedestrian legally crossing the roadway on which he is driving, and to any vehicle in the
    intersection or approaching on another highway so closely as to constitute an immediate hazard during the time such driver is moving across or
    within the intersection. Provided, however, that if such driver is involved in a collision with a pedestrian in a crosswalk or a vehicle in
    the intersection after driving past a yield sign without stopping, such collision shall be deemed prima facie evidence of his failure to yield the right of way.

  • Dave H.

    Most of the comments on this post have to do with the enforcement of criminal law.

    One area that I think really is deserving of much inquiry on the part of Streetsblog, TA or whoever is interested in advocating for pedestrian and cyclist safety is in civil liability.

    If I’m not mistaken, in all states in the Union, drivers only have negligient liability in accidents with pedestrians and cyclists. This means that they (or their insurance companies) can be sued for damages ONLY if the pedestrian or cyclist can prove that the motorists failed to exercise due care. If the cyclists of plaintiff cannot prove this, then no dice, i.e. no compensation.

    However, it is well established in US law that many kinds of activity have a different standard of liability. It is so-called “strict liability,” which, in our case, would mean (and I hope any lawyers reading will correct any nuances I have gotten wrong) that it is up to the motorist to prove that the pedestrian or cyclist did not exercise due care — if he is unable to prove this, then he is automatically held liable for damages. In short, it shifts the burden of proof onto the injurer (for I think it is fairly safe to say that in car-pedestrian and car-cyclist accidents, the car suffers relatively little injury than the other party).

    This, for example, is how a class of activities called ‘ultra-hazardous activities’ work. If I carry around a stick of dynamite and it blows up injuring you, the presumption is automatically that I have to pay damages to you, UNLESS I can prove that it was through your fault it blew up. This is also, roughly, how worker’s compensation works (actually, many worker’s compensation plans are even more ‘draconian:’ the employer ALWAYS has to pay, even if the employee was at fault, but this does not detract for my point that this general principle is quite well-established in other areas of our law).

    In most European countries, since the Fifth Directive on Motor Insurance (2003), drivers DO have strict liability in accidents with cyclists and pedestrians. The UK, I believe is an exception. Here is a petition, however, that just went out that seeks to reclassify driving as an ultra-hazardous activity with strict liability.

    http://groups.google.com/group/uk.rec.cycling/browse_thread/thread/114bfacada33d578/f766cb26a7873299?lnk=raot

    I don’t think it would be easy for this to be done in the US; just take a look at how skeptical many of the British CYCLISTS are about the petitition (in the comments at the above link).

    On the other hand, this is absolutely something worth fighting for. It would go a long way in putting the costs of the accidents not on the people who are doing the environmentally-friendly, desirable activity (walking or cycling), but on the ones who are doing the socially destructive and harmful one. It would also make it in driver’s interests to drive more slowly, to have safer intersections installed, etc. etc.

    Is this even something that anyone has ever heard discussed here? I hope this might be a new issue we could put on the radar.

  • Dave H.

    I need to proofread better.

    I WROTE
    “If the cyclists of plaintiff cannot prove this, then no dice, i.e. no compensation.”
    I MEANT
    “If the cyclists or pedestrians cannot prove this, then no dice, i.e. no compensation.”

  • Dave H.

    http://en.wikipedia.org/wiki/Prima_facie

    Prima facie evidence means the amount of evidence you need to have in order to carry the burden of proof. In other words, evidence that’s good enough that, unless it’s rebutted, is enough for you to win.

    As far as I can tell, there probably should be a prosecution when there’s prima facie evidence. Again, though, I’m counting on a lawyer to add a little nuance to my understanding.

  • steve

    I love the idea that driving be considered an ultrahazardous activity like blasting for which strict liability applies. Can’t see too many judges (or legislators) going for it, but it’s worth a try. It would result in a dramatic increase in the cost of auto insurance, enough to force many people off the road.

    Another approach for imposing strict liability is the risk/utility analysis, in which the court weighs the risks against the utilities of a particular technology and determines whether, on balance, strict liability should be applied. This approach grew in part out of the recognition of asbestos-related health hazards in the 1960s. From the 1850 through the 1960s, asbestos was widely used as an insulation and filtration agent, although knowledge of asbestos-related health risks began to be documented in the 1920s. By the 1960s a clear association of asbestos and cancer was established. Partly in response to growing awareness of environmental hazards like asbestos and partly due to other legal developments, courts fashioned the risk/utility analysis and found that manufacturers of asbestos-containing products would be held strictly liable–something that would have been unthinkable just 20 years earlier.

    A smart economist/epidemiologist could probably develop a comparison of the risk of injury associated with motor vehicle use as compared to asbestos use. Such a comparison might yield evidence that could be used in a legal setting to impose strict liability. However the respective utilities of the two technologies would be much more difficult to quantify or compare and would inevitably be driven by assumptions and prejudices. Another key factor in the risk/utility analysis is whether lower-risk alternative technologies are available–and that is certainly the case with private automobile use in a pedestrian-rich environment like NYC.

    Unless/until strict liability is imposed on motorists through an ultrahazardous activity or risk/utility rationale (and I’m not holding my breath), the negligence per se doctrine is a helpful substitute. If the motorist was found to have violated any traffic rules and the violation contributed to the injury, then the motorist is negligent per se and neither the judge nor the jury will be permitted to conclude to the contrary in most circumstances. That’s one of the reasons it is so important for police to accurately investigate motor vehicle collisions and issue summonses to drivers when appropriate.

  • Dave H.

    “It would result in a dramatic increase in the cost of auto insurance, enough to force many people off the road.”

    Steve, thanks for the post. I add this more as a clarification than anything else. It bears emphasis and repitition that this increase in the rise of the cost of insurance would NOT be a new cost. That cost already exists. It is paid every day by the people who are injured and whose property is injured by automobile accidents.

    All changing liability rules does is transfers the cost onto someone else. Instead of saying – instead of saying, we’ll let costs lie whereever they fall (in this case, on pedestrians and cyclists), we’d be saying that drivers should be responsible for these costs and that they should to have pay for them (through higher insurance premiums).

    I share s your skepticism about automobile usage being governed by a strict liability standard in the US any time soon. However, it already is in much of Europe. So though it won’t happen soon, I think it could happen. The real question: do we think it’s worth fighting for?

  • Dave H.

    Geez, I really need to proofread more carefully.

  • Dave H.

    Your point about transit-rich New York City and the risk/utility analysis has suggested to me what a first step might be: a New York State statute saying that “in municipalities of over 3 million,” strict liability will apply to motorists in all suits arising pursuant to collisions with pedestrians and cyclists .

    This could be within the realm of the politically feasible.

  • Angus Grieve-Smith

    Alex asked:

    Is there a section that would apply for pedestrians in a crosswalk crossing with their light?

    IANAL, but I think it’s this one:

    Traffic, except pedestrians, facing a steady circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Such traffic, including when turning right or left, shall yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.

    With regards to the civil vs. criminal law question, it’s more important to me that a homicidal driver be imprisoned or have their license revoked (depending on the severity of the crime) than that their insurance go up. After all, with accident forgivennes, you can pre-pay and get into up to five crashes without your premiums going up!

    That said, even for criminal charges the police seem to be acting on a principle similar to the “negligent liability” that Dave describes. If the person killed couldn’t possibly be at fault (i.e. they’re a passenger in a car, or they’re inside a building), then the driver must be at fault and the police will press charges. But if there’s any possibility of assigning blame to the dead person (i.e. they’re walking in the road or a crosswalk), then the police seem to try to place as much blame on them. After all, they’re dead – and we wouldn’t want the poor drivers to suffer unnecessarily, would we?

  • Not A Lawyer

    Police don’t bring charges, they only investigate and arrest a suspect based upon evidence.

    Charges are brought by the District Attorney’s (i.e. prosecutors) office in criminal cases.

  • Angus Grieve-Smith

    Hm, so when they say, “the driver is not being charged,” that means that someone in the DA’s office decided not to press charges?

    Of course, the DA makes a decision based on the evidence collected by the police, so there’s some connection. But thanks for the clarification.

  • Dave H.

    Angus,

    The difference between the purpose of criminal law and civil law in cases such as these is a topic long debated by law professors around the country.

    I think most people would agree that criminal law serves a deterent and a retributive purpose – i.e. don’t do this, or else you will go to jail and you’ve done this, you need to be punished, now go to jail. I agree that these are important things are certainly not to be forgotten. The point I was making was a little different though.

    Again, speaking very generally, civil law torts (which is what I brought up) do not serve a punitive purpose but deal with allocating the costs of a certain activity. What I mean is, there already is a cost – the purpose of tort law is to decide who is going to pay it. If a driver runs into a pedestrian and causes her to have $3,000 of medical bills and $500 of lost wages from time missed at work, this cost exists no matter what. The question is, who is going to pay for it? Under the current system (negligent liability), the pedestrian has to pay it unless she can prove the driver did something wrong. Under the system I think we should consider moving towards (strict liability), the driver has to pay it unless she can prove the pedestrian did something wrong. There would be two major effects from such a change:

    1) in cases where it is unclear who was wrong or if anyone was wrong, now the pedestrian pays. Under strict liability, which is what I think we should have, the driver would pay.
    2) now, the pedestrian has to sue and make a case. if she is uncertain she will win, she may not sue and decide to accept the costs of the accidents rather than face the possibility of paying for a lawsuit AND losing. Under strict liability, this gets flipped around. Now the driver has to face the risk of deciding to sue when the outcome is uncertain.

    Generally, we go to strict liability when we decide something is ultra-hazardous or otherwise undesirable, yet perhaps at times necessary, (like carrying around sticks of dynamite). In these cases, we want to discourage the activity to the extent possible. I think driving is such an activity.

    Also, we go to strict liability when we think one party is a better cost-avoider than the other. That is, if we think the injurer has more control in avoiding accidents than the victim, we go to strict liability. This I think applies and would lead to a third effect – since drivers and insurance companies would be paying the costs of many more accidents, they would now be incentivized to lobby for safer streets that would reduce the amount of accidents on those streets. Pedestrians don’t really need a financial incentive to reduce the amount of accidents – they’re going to try pretty damn hard not to get hit, period.

    This isn’t about individual drivers having to pay more for insurance. If driving got moved to strict liability, ALL DRIVERS would have to pay more for insurance. Again, it bears repetition, this is not some kind of penalty, but rather a transfer of the costs of automobile-pedestrian accidents over to the motorists as opposed to leaving them on the pedestrians, where they currently lie.

    By the way, I am waiting for someone to come in and correct me about the nuances here. I am trying to summarize the classic book on tort law called “the Costs of Accidents” written by Guido Calabresi (who is now Judge Calabresi). I do think I’ve got it generally right, though.

  • Dave H.

    I said something wrong: ALL DRIVERS would have to pay more for insurance, if the amount of accidents per driver does not decrease.

    In theory, putting drivers on strict liability would decrease the amount of accidents; so, in fact, is not certain that anyone would have to pay any more. Either outcome is acceptable. Either 1) There are fewer accidents and drivers don’t pay any more insurance or 2) drivers have to pay more insurance, but they are just paying for accidents that pedestrians and cyclists would otherwise have had to pay for.

    This may sound a little crazy but it is how much of the EU operates.

  • Rich

    Julia Thomson was a great friend of mine- I went out to New York in April to see her- she was so happy and loving life in America- she didn’t deserve this and I hope the guy who didn’t stop sobers up and gets what’s coming to him.

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