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

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.

  • Frank TwoHarbors

    The NYPD is too busy focusing on all the life-threatening areolas in time square, and beating Black youth in Brownsville to do any of this.

    Bottom line we lost with a fake liberal like BdB and need to do better next election.

  • BBnet3000

    All drivers are equal, but some drivers are more equal than others. A tale of two cities indeed.

  • No matter how optimistic the outlook is here, this is yet another setback and yet another cave on Vision Zero by de Blasio. Not that it wasn’t before, but Vision Zero has truly become talking points and murals rather than actions and policies.

  • WalkingNPR

    But all drivers are more equal than pedestrians.

    (you could also substitute “valuable,” “worthwhile”…..)

  • JK

    TWU basically won and pedestrians lost. Hope they feel great about returning the 00 license to kill to their bus driving members. Congrats guys. They’ve made this law too complicated by far for the average cop or Crash Unit to apply. What exactly does “Due care” mean? Let’s see an explainer piece by Vaccaro.

  • De Blasio, who is clearly deferring to his police commissioner on all things Times Square, will probably not make it a point to ask that the ROW law be properly explained to NYPD officers charged with applying it. Vision Zero is dying a death by a thousand cuts.

  • ToastPatterson

    This is a gutting of the ROW law, to the extent it was even enforced at all before. I’m guessing the NYPD will interpret the settlement to mean that unless they can establish that the bus driver was texting or drunk when he crushed a pedestrian, it’s just another oopsie. BdB is a toothless clown-fraud. The problem is, who could we get into office that would be better? Scott Stringer? Ken Thompson? Pols just don’t care about street safety enough to do anything about it because the general public is too complacent about vehicular violence. It’s all so infuriating.

  • Aaron

    TWU leadership clearly believes that killing pedestrians and cyclists is an unavoidable and necessary part of bus drivers doing their job in New York City. Prior to the ROW Law they were killing twelve or thirteen of us per year. Rather than this confusing mish-mosh of a “settlement,” De Blasio should have just negotiated an allotted number of annual pedestrian and cyclist killings into the TWU’s contract. That would have helped to boil this argument down to its raw essence so that New Yorkers could evaluate it more clearly. Like so:

    TWU bus operators are permitted and expected to kill X number of pedestrians and cyclists on New York City streets annually. If TWU bus operators exceed their allotted number of annual ped/bike killings, they pay some penalty. If they come in below their annual number of allotted killings, there’s a reward. I’m not even kidding. I think this is the fundamental deal that’s being struck here and it would be more useful to just be honest about it. This would be NYC’s version of a wildlife management program to protect exotic safari hunting animals in Botswana.

    And, heck, once this system is fully implemented and all of the other public employee unions and motoring interest groups have their allotted ped/bike kill allotments worked out, TWU could even sell its Pedestrian-Cyclist Trophy Hunting Permits to other groups. So, for example, let’s say the Sanitation Department has run over and killed a few extra walkers and bikers in a given year but the bus drivers still have extra permits available. TWU could sell those permits to Sanitation. It’s probably a little bit too much of a market-based approach for the unions but I bet they’d be OK with it.

  • BBnet3000

    Walking and cycling are frivolous recreational activities. I on the other hand am a Very Important Person with Very Important Places to drive, such as the beach and Vermont.

  • bolwerk

    The NYPD won’t make it a priority? Gee, if only there were someone whose job could be to instruct the NYPD as to what it should and should not prioritize. They’d never turn their back on lawful civil authority, right?

  • Flakker

    Don’t worry, we’ll soon have 1300 more cops arriving on station to help!
    maintain the status quo, just expensiver.

  • SteveVaccaro

    This is basically an agreement to not resolve the dispute over whether or not the RoW law will be enforced in the context of a lawsuit, with a judge deciding, but rather through the same opaque political/administrative process by which NYPD street-level law enforcement policy is conducted that governed enforcement of the RoW Law before the lawsuit was filed. Representative of the Mayors’ Office are whispering that there will be more enforcement rather than less under this settlement. TWU and its surrogates suggest there will be less rather than more. As before, it is up to advocates to push back, ideally by drawing public attention to lack of consequences for careless drivers who hurt and kill. The only “news” in this settlement is that TWU realized that it was a mistake to get a judge to rule on he RoW Law.

  • djx

    Got to stop guys taking illegal selfies on bridges!

  • djx

    Right. We’ve got cap-and-trade to deal with carbon emissions, so your plan for kill-and-trade for traffic safety fits right in. Well-said, sir!

  • AnoNYC

    Ugh.

  • neroden

    For those who don’t know, the Mayor has absolute authority over the NYPD.

    He should have fired “Corruption As Usual” Bratton on day one. I’d have offered the Commissioner job to Sheriff Urquhart of King County WA — you’d probably see thousands of criminal cops in prison within a month.

  • neroden

    Yeah. Next election you need to elect someone who isn’t afraid to throw Patrick Lynch into the Tombs, and arrest any other police officer who breaks ths law.

    We need liberals with the killer instinct, who are willing to actually destroy the nests of thugs. I don’t think we’ve had one in office since FDR.

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