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City Hall and TWU Reach Settlement in Suit Over Right-of-Way Law

9:27 AM EDT on September 1, 2015

The de Blasio administration has reached a settlement with TWU Local 100 over the union's lawsuit against the Right-of-Way Law, ostensibly bringing an end to a rancorous political fight that sapped energy from the city's street safety efforts for the better part of a year.

On its face, the settlement maintains the integrity of the law, which was intended to ensure a basic measure of accountability when drivers harm people who are following all the rules. In practice, NYPD has rarely applied the law, and with this settlement the key question remains whether rank-and-file officers will be trained to enforce it properly.

The city enacted the Right-of-Way Law last summer, making it a misdemeanor for drivers to strike pedestrians or cyclists with the right-of-way. The law was supposed to address the vexing lack of police investigations into the thousands of crashes each year in which pedestrians and cyclists suffer non-life-threatening injuries. (As opposed to fatal crashes, which are investigated by a specialized unit, the Collision Investigation Squad.)

But after some MTA bus drivers were charged under the law for injuring or killing pedestrians, TWU 100 made gutting it a top priority. In the press, the union accused the law's backers of "criminalizing" bus drivers. In Albany and the City Council, TWU threw its muscle behind multiple bills to render the law unenforceable. And in the courts, it tried to get the law nullified on constitutional grounds.

The terms of the settlement do not capitulate to the TWU's legislative agenda, which entailed either carving out exemptions for bus drivers or neutering the law by spelling out a litany of circumstances (wet pavement, for example) in which it would not apply. "Protecting New Yorkers is our top priority and the Right of Way Law is a powerful tool to keep pedestrians safe," Mayor de Blasio said in a statement. "This settlement makes explicit what the City, the NYPD and District Attorneys mean by 'due care,' and the standard we are using as we implement this law."

The key passage in the settlement states that the law does not "give rise to strict liability," meaning that to secure a conviction, police and prosecutors need to demonstrate that a driver both failed to yield and failed to exercise due care.

While this does not conform exactly with how supporters of the law first envisioned it, a literal reading should lead to consequences for the vast majority of drivers who hit people with the right of way, according to attorney Steve Vaccaro, who specializes in representing people injured by motorists while walking or biking. That's because in "90 percent" of the cases in which a driver violates someone's right-of-way, the law makes it a simple matter to demonstrate that the driver failed to exercise due care, he said.

"Under [case] law, negligence is shown by the fact that a driver committed a traffic violation in the course of hitting someone who had the right-of-way," Vaccaro explained. Since traffic law prohibits drivers from turning unless they can do so "with reasonable safety," he added, nearly every time someone with the right-of-way is struck, a traffic violation has been committed, meeting the negligence standard. The main exceptions are when the victim is not "moving at normal ambulatory speed," Vaccaro said (i.e. the proverbial person who "darts into the street").

Vaccaro's concern with the settlement is not the literal text so much as how NYPD will present it to rank-and-file police. So far, of the 30 or so Right-of-Way charges that have been filed since the law took effect a year ago, all but a few (perhaps just one) were brought by the specialists at the Collision Investigation Squad. But the promise of the law hinges on ordinary precinct cops using it. Otherwise, there still won't be any consequences for most drivers who injure people with the right-of-way.

The big question mark about the Right-of-Way Law is basically the same today as it was a year ago: Will NYPD make it a priority and train precinct officers how to apply it properly?

Based on his experience in depositions, Vaccaro has doubts that most cops understand how to apply the "due care" standard. He worries that instead of clarifying the standard, NYPD's training may muddy the waters by introducing potentially exculpatory factors that aren't in the letter of the law.

The effectiveness of the Right-of-Way Law, as he sees it, will largely boil down to whether NYPD's precinct-level training about right-of-way investigations is on target, or makes them out to be more complicated than they should be. "It’s important to know what this guidance is, and whether it will be taken by the NYPD leadership structure and turned into an excuse not to enforce the law," said Vaccaro.

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