Witnesses say a convoy of National Guard trucks was blowing red lights on Canal Street Tuesday afternoon when one driver struck an elderly man, who died from his injuries. Accounts of the crash contradict statements from the National Guard that the victim ignored a police escort before walking into the path of the driver, who may have violated state traffic laws pertaining to military vehicles.
The victim was identified by NYPD as Kwok Fu, 82, of Woodhaven. Police and witnesses say Fu was crossing Canal at Centre Street from north to south when he was struck by the westbound truck, which according to the Times was part of a National Guard procession en route to the Javits Center to pick up Sandy relief supplies.
"Apparently, the gentleman stepped off into traffic," National Guard spokesperson Eric Durr told the Times. Sam Gustin, a reporter for Time Magazine, spoke with a soldier who said, "He just ran out in front of the truck. Nobody looks left or right before crossing the street here."
But according to witnesses, the truck drivers were running lights. David Trimble saw the collision:
I was crossing Canal from south to north. The lights on Canal had turned red and the crosswalk light was illuminated. As I approached the middle of the street I looked to the right and noticed the convoy approaching. You can usually count on approaching traffic to stop at a red light. In an emergency situation you expect sirens and flashing lights to indicate the vehicle is not going to stop. Military trucks are not a normal sight in the city and therefore it took me a few critical moments to realize these vehicles were not following normal traffic rules.
I took a few steps into the east-to-west traffic lane before I understood that these trucks were not slowing down. It is hard to judge the speed of an approaching vehicle when looking straight at it. I instantly retreated back to the west-to-east traffic lane to let them pass. As the convoy passed the driver of the first truck made eye contact with me, tapped the horn and actually accelerated. Had I not retreated from the lane I would have been hit myself.
As a cyclist I am used to close calls with traffic. Usually it is a give-and-take scenario. The vehicle slows down or stops and the pedestrian or cyclist adjusts their route and a collision is avoided. The kind of close calls that shake you up are when you realize that if you hadn't taken major evasive action that you would have been killed. As the trucks blew past I felt a wave of adrenaline and anger immediately. In this instance it was 100 percent up to the pedestrians to get out of their way.
As the front of the convoy passed (it appeared to be five to eight trucks) I looked to my right and noticed a gap in the convoy with a further line of trucks approximately a half block behind. There are reports that the second part of the convoy was only cheating this particular light to try and rejoin the first part of the convoy. The entire convoy was maintaining speed through all of the red lights. I am not clear on the timing of the lights but it is possible the first part of the convoy beat the light at Centre Street and this elderly man simply began crossing the street as normal. I stress again it was not immediately clear that this convoy of trucks was not going to stop at the red light. There were no blaring horns, sirens, or anything else. The pedestrian was not jaywalking or trying to beat the convoy. I saw the impact clearly.
Following the impact there was confusion about what had just happened. I watched the response for approximately five to seven minutes. The victim was completely under the front of the truck. The first response was from a pedestrian who saw the accident and quickly crawled under the truck to asses the situation. The passenger of the truck got out of the truck a minute later, looked at the victim, and got on the phone. The driver did not move from his seat.
A witness wrote to Bowery Boogie that the convoy ran at least one light, adding, "I think it’s pretty safe to say they ran the previous red light as well." Two witnesses quoted by the Daily News said the truck driver was traveling against the light at a high rate of speed. “It’s the driver’s fault,” said Armando Baez.
"It's hard to place blame on the driver of this particular truck as he was simply following his convoy," writes Trimble. "Does the lead truck in the convoy set the protocol? Was this convoy responding to an emergency that required absolute speed through the city? Do they have permission from the city to disregard traffic laws? If so how can they safely do this without sirens or police escorts."
Durr told the Times that the convoy was led by a police escort, a detail not mentioned in media reports or published witness accounts. "I did not see a police escort," says Trimble.
State traffic code does include provisions for military vehicles. "The federal government has waived sovereign immunity under the Federal Tort Claims Act," says attorney Steve Vaccaro. "The first question would be whether they were an 'authorized emergency vehicle' involved in an 'emergency operation.'"
Vaccaro points to VTL section 101, which defines a "civil defense emergency vehicle" and an "environmental emergency response vehicle" as emergency vehicles. An emergency operation, as defined by VTL 114-b, may include "responding to, or working or assisting at the scene of … [a] disaster."
VTL 1104 states that the driver of an emergency vehicle involved in an emergency operation may "[p]roceed past a steady red signal … but only after slowing down as may be necessary for safe operation," and that a vehicle operator may "[e]xceed the maximum speed limits so long as he does not endanger life or property."
"If the vehicle meets the definitions, then they are liable only for 'reckless disregard for the safety of others,' not for simple negligence," says Vaccaro.
VTL 1104 says that laws pertaining to emergency operations "shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others."
Transportation engineer Sam Schwartz notes that photos seem to indicate that the truck was not equipped with crossover mirrors. Though the law mandating the mirrors is intended to prevent this type of crash -- one precipitated by a large vehicle with limited sight lines operating in a pedestrian environment -- Vaccaro says they are probably not required. "The law applies only to commercial vehicles," says Vaccaro.
As of this morning the investigation into the crash is ongoing, according to an NYPD spokesperson.
