With Traffic Deaths Trending Downward, Lancman Attacks Right of Way Law

Police Commissioner Bill Bratton told the City Council today that NYC traffic fatalities have continued to drop in 2015, but not every council member is pleased with the city’s recent steps to deter dangerous driving.

Rory Lancman

In testimony to the public safety committee, Bratton said traffic deaths were down 43 percent as of mid-February, though he didn’t give exact figures or dates. NYPD collision data from January show overall fatalities were down 38 percent compared to January 2014, and pedestrian and cyclist deaths decreased by 46 percent compared to last year. Injuries to pedestrians and cyclists also declined relative to 2014. NYPD didn’t release January data until March, so February data likely won’t be available to the public for a few weeks.

This is too small a sample to draw hard conclusions. But it could be an indication that NYC’s speed camera program, coupled with NYPD enforcement of speeding and failure to yield — which is inconsistent among precincts but trending upward overall — is paying dividends.

Chief of Transportation Thomas Chan said enforcement of the Right of Way Law, which made it a misdemeanor for drivers to harm someone with the right of way, continues to be limited to the Collision Investigation Squad, as the department is still developing a protocol for precinct officers to apply it. Council Member Rory Lancman, who in February asked Chan how police determine whether a driver who failed to yield also failed to exercise due care, again questioned whether NYPD is applying the law correctly.

“I get it that you’re formulating a procedure for the rest of the force, but you’re arresting people now,” Lancman said. “And so those arrests need to be done in conformance with the law, which requires not merely failure to yield, but also the failure to exercise due care. So for the group of officers, the CIS team, that are authorizing those arrests, what standards are they applying to whether or not somebody not just failed to yield, but also failed to exercise due care?”

Chan laid out the procedure. “What happens is that the CIS officers and investigators will conduct a thorough investigation, and taking a look at the totality of the evidence, whether it be video tape, an interview with witnesses, the right of way of the pedestrian who was crossing at the time, and doing a full investigation and taking all those circumstances into consideration,” he said. “And if we do find that the individual failed to use due care when they struck the pedestrian in the crosswalk, then they will make the arrest for that particular violation.”

Chan went on to explain that investigations can take longer if certain evidence, like video, isn’t immediately available. “As they develop probable cause that the person failed to yield, and did not exercise due care, that’s when they will make the arrest,” Chan said. “But again it’s on the totality, taking a look at all the evidence and all the circumstances, and a thorough investigation, that’s when they will make an arrest.”

At least five pedestrians have been killed by drivers since January 2014 in Lancman’s district, and he voted for the Right of Way Law. But it doesn’t seem like he’s about to stop backpedaling on it. “Well just get me an answer to that letter and we can carry on the conversation,” Lancman told Chan.

Lancman and several other council members, including Corey Johnson and committee chair Vanessa Gibson, complained that their districts don’t have enough crossing guards. Department officials said eliminating a fee for background checks has resulted in fewer vacancies than usual, but said no pay raises are forthcoming.

  • qrt145

    How can someone fail to yield while exercising due care? I believe that “failure to yield” is a proper subset of “failure to exercise due care”.

  • Ian Turner

    Blown tire? Other equipment failure? Road slick? Heart attack? Collision with another vehicle?

  • CIS would probably be able to determine on the spot if a driver’s tire blew or if road conditions or a medical event contributed to the crash. In cases where they’ve applied the ROW law, I’m assuming they were able to rule out such extenuating circumstances very quickly.

  • I don’t believe I know of a single arrest for someone striking a pedestrian in the crosswalk because of equipment failure or the other reasons you list.

    Got any examples?

    I agree with qrt145. Failure to yield is failure to exercise due care. If it’s not so legally, it needs to be changed…just like the law was changed to change striking a pedestrian or cyclist who has the ROW from a ticketable traffic violation to an arrestable misdemeanor.

  • M to the I

    Yes, I would like to hear which cases where there was an arrest under the law that the Councilmember feels as though there was a failure to yield but not a failure to exercise due care.

  • IlIlIl

    Is this guy kidding? Who is paying him off to run with this stupidity?

  • ahwr

    If witnesses say a pedestrian darted into the street from behind a parked car and the vehicle that struck him was turning slowly do you think CIS makes an arrest?not if they should, if they do. I bet if you did a survey you would find a good chunk of the public, and possibly a majority of the city council, will expect that if pedestrians don’t behave perfectly that a moderately cautious driver who hits them in the crosswalk shouldn’t be guilty of a crime.

  • Andrew

    As was just discussed in a Streetsblog article a few days ago, most crosswalks in New York are “behind a parked car.”

    A pedestrian who enters (whether by walking or by running or by jogging or by skipping or by somersaulting or by darting) the crosswalk with the walk signal is, in my (strong) opinion, behaving perfectly. And a driver who is not actively watching for pedestrians in and approaching the crosswalk is not doing his job.

    (I know, this doesn’t answer your question.)

  • ahwr

    Yes of course. Reckless driving is endemic, I don’t think it’s a stretch to say that a majority of drivers take some unnecessary risk that places pedestrians in danger on a daily basis. I don’t think you’ll get the majority of them, or of the city council, to see that as a crime just yet, even if someone is seriously injured or killed. I think many who voted for the right of way law, probably including Lancman, saw it as a way to go after only the most reckless drivers (or just to appease constituents), and that many crashes that people here, and pedestrians generally, would like to see treated as crimes would still be seen as accidents. When I talk about a pedestrian that doesn’t behave perfectly what I mean is that for some drivers, if you ask them to be cautious around pedestrians, they only see it as reasonable if the pedestrians are taking at least as much care to protect themselves. From that point of view if there is some hint that a pedestrian did not show an overabundance of caution, well in excess of what is required by law, then the standard of recklessness required of a driver who hits that pedestrian to be charged is raised significantly. So unless the driver was drunk or texting or speeding more than 20mph over the speed limit you won’t find as many people willing to support the idea that the driver committed a crime solely because he struck a pedestrian in the crosswalk.

    Yes parking is allowed right up to the crosswalk. But there are large variations in visibility. There’s a difference between a car with untinted windows at the corner, and a tall van or truck, or an SUV with heavily tinted windows. And it’s not just the vehicle at the corner that matters. A row of parked cars doesn’t necessarily make it impossible for a driver to see if an adult is in or about to enter the crosswalk from down the block, if there are gaps between the cars, or enough with untinted windows, and there aren’t visual obstructions on the sidewalk etc…So even if there’s a large SUV at the corner you can know if someone is crossing, though you can’t know if someone isn’t. If instead you have an 18 wheeler then you can’t know if someone is crossing. Yes, the proper response to uncertainty is to slow down. But I don’t know that a majority of the city council agrees with that unconditionally.

    Or maybe I’ve just been gone from NYC too long. Most everywhere else the attitude towards those not in a car is even worse…

  • Andy

    It’s responsible driving. If you can’t clearly see the side of the road, slow down. If you aren’t always expecting someone to be potentially crossing the road, you aren’t driving safely. Is that a lot to ask? Yes. Because cars kill, and excuses to how much tint or how many large cars in the way does not mean that you are any less to blame for hitting someone who has the right of way.

  • ahwr

    Yes I agree. I think many others don’t, that’s my only point. After 18 or so arrests there is push back. If NYPD enforced the law the way people here, myself among them, would like it to, there would be closer to 1800 arrests at this point.

  • Joe R.

    Philosophically you’re correct. Unfortunately, for better or for worse, out society made an intentional tradeoff where we traded lives for time. In order to drive in such a manner as to never hit anyone, even if they unexpectedly darted into the road from between parked cars, you would probably never be able to go faster than 10 or 15 mph. Once you count stopping at red lights, driving would be as slow as walking. Sure, average driving speeds in NYC aren’t all that great even with the higher speeds people do drive, but the point remains-somewhere along the line we’ve decided the tradeoff of a certain number of lives was worth whatever speed was gained.

    Same thing in a way for the subways. How many people get killed on the tracks each year? How many might be saved if trains always entered stations at 5 mph? We decided not to do this because it would probably double the running time of trains and save a relatively small number of lives. Moroever, most of the people hit by trains were on the tracks of their own volition, and so are seen as being mostly to blame for their own deaths.

    To some extent you could make a similar argument for people darting out into streets suddenly where vehicles can’t see them. Unless it’s a crosswalk, a reasonable driver just doesn’t expect someone to be crossing there. Even if there is a crosswalk, a driver doesn’t expect people crossing if they have the green. So yes, in theory you might say you should always drive as if someone will potentially be crossing the road. In practice we don’t do this because it would cost an enormous amount of time, plus in many of the situations we can say to some extent the person crossing caused their own grief by crossing at an inappropriate place and time.

    Or put in simpler terms, in the interests of transportation efficiency, we as a society decided long ago that there are certain times and places people on foot just don’t belong, such as highways, railways, subway tracks, even surface streets except at certain times and locations. On a societal level this makes sense. The downside is when drivers get too used to having the supposed right-of-way, and then fail to take account of other road users even when they’re legally supposed to. That’s really where we will make the most gains. Remember the vast majority of pedestrians in NYC were killed doing exactly what they were allowed to do-crossing in a crosswalk with the right-of-way. We must repeatedly stress to drivers when they’re turning to yield to people crossing. If they don’t see these people, then it’s evident they weren’t exercising due care.

  • In such a scenario the pedestrian would not have the right of way and the driver wouldn’t be charged under this specific law.

  • ahwr

    I thought that was only at an unsignalized crosswalk, that when there is a traffic light the pedestrian doesn’t have a legal duty not to enter the crosswalk so suddenly that traffic is unable to stop?

  • stairbob

    The bus union?

  • Tyson White

    Those are rare and the evidence would be readily available.

  • Tyson White

    “As a way to go after the most reckless drivers”? There are already laws to go after the most reckless drivers, so I don’t think passing a law with a maximum $250 penalty was the goal here.
    Also, what difference is it to the family of a dead pedestrian whether the driver was most reckless or just flat out negligent?

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