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.

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.

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.

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

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?

This could be within the realm of the politically feasible.

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?

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.

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.

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.”

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.

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.

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.

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

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.

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.

Make it an international incident!