Streetsblog New York City

As any good policy wonk knows, certain activities effectively force people who only bear the costs of that activity to subsidize the beneficiaries. To use the classic contemporary example, fossil fuel polluters receive billions in tax breaks, but pay nothing for the climate change-inducing carbon that they emit.

The same problem applies to private motoring, the costs of which are, in many cases, spread across non-drivers or society at large. The curb lane in front of my home provides free storage for my car-owning neighbors’ vehicles. A portion of my taxes go to maintaining highways I rarely use, caring for uninsured crash victims and asthma patients in city hospitals, bailing out the auto industry because it’s too big to fail, and fighting wars to keep oil cheap.

One aspect of private motoring that benefits motorists while imposing costs on others is crash investigations. Anyone involved in a motor vehicle crash (and remaining conscious afterwards) knows that two NYPD officers are sent to the scene and spend usually about half an hour or more recording information including weather conditions and the contours of the road. (The officers may also spend some time trying to convince you not to make a report.) Many of these crashes involve property damage only.

While the barely relevant details of fender-benders are meticulously documented, members of the NYPD Collision Investigation Squad are supposedly doing in-depth investigations of all crashes involving “critical” injuries.

Why is the public at large paying teams of police officers to gather loss adjustment information for insurance companies in property damage disputes, while acts of serious traffic violence go uninvestigated?

The answer lies with the insurance industry. From an industry-wide perspective, insurers’ interest is not focused on determining fault for a crash. Since any given insurer can just as easily find itself on the defending end as the prosecuting end of a crash-related claim, the captains of the insurance industry don’t really care how fault is allocated in any given crash (however much the individual insurance adjusters assigned to particular crashes may care).

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Reading Heather Mac Donald’s impassioned defense of the race-neutral character of NYPD’s stop and frisk program in City Journal this weekend, I was struck by the following statement of an NYPD precinct commander, Inspector Christopher McCormack, exhorting an officer to be more “proactive” in making stops:

“The point here is that 99 percent of the people in this community are great, hardworking people who deserve to walk to the train stop, walk to their car, walk to the store [without fear of getting shot].”

This statement has been put forward as evidence in the federal class action lawsuit Floyd v. City of New York. There, plaintiffs allege that NYPD’s stop and frisk program racially targets minority youth based on tenuous (or no) evidence. Defenders of the program contend that systematic “proactive” stops in high-crime neighborhoods drive crime rates down. The stops have been characterized as a form of “broken windows” policing, through which the targeting of lesser crimes creates an atmosphere of vigilance that is thought to discourage more serious crime.

Why no “broken windows” for traffic violence? Transportation Alternatives and Streetsblog first posed this question back in 2009, and persistent advocacy and pressure since then have led to some progress. NYPD recently announced that more crashes would be investigated, and that it would use the more neutral term “collision” to describe these incidents rather than “accidents.” But these changes affect only cases in which the victim is critically injured. In practical terms, NYPD’s announced 50 percent increase in investigators ostensibly would increase crash investigations from the current ~300 to ~450 per year — even though state law mandates that NYPD investigate all of the 3,000-plus NYC crashes each year that result in serious or fatal injury, and NYPD is currently facing a lawsuit brought by my firm to fulfill that mandate.

Do these modest improvements signal a more fundamental change in NYPD’s bias against “suspecting criminality” in cases of traffic violence? One reason for that bias is the traditional requirement that conduct, to be treated as criminal, must be accompanied by an “evil mind” — an intent or at least an awareness of doing harm. And yet, even in hit-and-run cases, where criminality usually by definition exists, NYPD still generally fails to investigate offenders or refer for prosecution unless the case also involves death, or more recently, “critical” injury.  Why do crimes committed with cars so often get a “pass” from NYPD?

Last week brought news of an extremely clear case of NYPD’s double-standard regarding crimes committed with cars, that of John Kelly, who is now a client of our firm. While riding in a bike lane a block from his home, John was struck twice by the driver of a van. The second hit knocked John from his bike and sent him up onto the hood, where he clung for his life as the driver accelerated, crushing John’s bicycle under the van’s wheel. The driver made eye contact with his John throughout the episode, leaving no doubt that this was an intentional assault. After John escaped from the hood, the driver fled the scene.

Miraculously, John’s injuries were minor. Police were summoned to the scene, where they received accounts of the assault from John and several witnesses. Yet the officers’ only response was to complete an “accident report” — what “accident” was that? — and to close the case without any investigation. Apparently “suspecting no criminality,” NYPD ignored strong evidence supporting at least three felony charges (second degree criminal mischief, first degree reckless endangerment, and second degree assault), as well as two misdemeanor charge (reckless driving and  hit-and-run).

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In the aftermath of a crash, we inevitably ask: How can a dangerous driver be kept off the road? It seems that the entire automobile transportation regime is aimed at keeping the driver behind the wheel. Absent impairment or flight from the scene of the crash, police quickly conclude that “no criminality is suspected.” The name of the responsible driver may be carefully guarded by police, even when the name of the victim or selective details are not. Government compels the insurance market to continue insuring the responsible driver, even if the market would consider the driver too risky to insure. The under-resourced legal system and insurance industry neglect and obstruct crash litigation, pressuring victims to simply accept whatever insurance is available without holding the driver personally responsible.

But it wasn’t always that way.

Before the advent of compulsory auto insurance laws in the 1950s, New York and most other states had “safety responsibility” laws instead. Under these laws, drivers involved in crashes had their licenses suspended until they posted a bond or demonstrated insurance in an amount sufficient to compensate the crash victim. Based on their involvement in a crash, these drivers would also be required to maintain insurance as a condition of keeping their driving privileges.

Under New York’s safety responsibility law (codified as Section 94-b of the Vehicle and Traffic Law), the crash victim had the right to directly petition the commissioner of the Bureau of Motor Vehicles for suspension of license of any driver involved in a crash causing personal injury or $25 of property damage. Absent the requisite showing of financial responsibility, the commissioner was required to suspend the license of a driver within 45 days — even if there had not been any finding of fault. At least for those drivers without insurance and financial means, this approach resulted in prompt suspension of driving privileges for drivers involved in crashes.

Though ensuring compensation of victims was clearly the primary purpose of the safety responsibility law, it also had an undeniable deterrent effect. As one New York court explained in 1942, “the penalty which § 94–b imposes for injury due to careless driving is not for the protection of the [crash victim] merely, but to enforce a public policy that irresponsible drivers shall not, with impunity, be allowed to injure their fellows.”

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As mentioned in Street Justice last week, legislation has been proposed that would create felony liability in some cases where a driver flees the scene after seriously injuring or killing a person. At present, leaving the scene of a crash is a misdemeanor, often a class B misdemeanor punishable only by a fine of $250.00. That’s less than the fine for running a red light.  That we attach so small a consequence to the outrageous act of injuring a person and leaving them in the road to die is positively shameful.

Could the New York State legislature actually take the dramatic step of making hit-and-run a felony? Why not? After all, when the problem of hit-and-run motorists first emerged 100 years ago, it was a felony.

Back in 1909, the New York State legislature was in the process of developing comprehensive regulations governing motor vehicles on public roadways. Motor vehicles were newcomers to the traffic mix, but were clearly in ascendance as a must-have item for the wealthy and powerful.  New York City’s upper class was believed to own approximately one-third of the entire 8,000-automobile U.S. fleet at the turn of the century.

One of the new motor vehicle laws enacted in 1909 was “leaving the scene of an accident” by the operator of a motor vehicle, which was made punishable as a felony, with up to two years of imprisonment:

“Any person operating a motor vehicle, who, knowing that injury has been caused to a person or property . . . leaves the place of said injury or accident, without stopping and giving his name, residence, including street and street number, and operator’s license number to the injured party, or to a police officer . . . shall be guilty of a felony punishable by a fine of not more than five hundred dollars or by imprisonment for a term not exceeding two years, or by both such fine and imprisonment.”

Under this law, well-heeled hit-and-run drivers spent small fortunes avoiding felony convictions. One driver, Raymond J. Curtis, struck the driver of a horse-drawn carriage, permanently disabling him, and then drove off. Curtis was convicted as a felon under the 1909 hit-and-run law, but reversed the conviction after two appeals, and obtained a second trial. The second jury also convicted Curtis, and the conviction stuck, despite two more appeals.

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In the last ten days, nine New Yorkers were killed by traffic violence. In each case where the driver responsible was sober and stayed at the scene, NYPD has announced, often within hours, that there was “no criminality suspected.” How can the deaths of so many fall completely outside the scope of the criminal laws?  The answer lies in the traditional emphasis in criminal law of punishing the “evil mind.” Meaningful driver accountability requires that we move past “evil minds” and implement strict criminal liability for traffic violence.

Most criminal laws require a finding of both a wrongful act and a blameworthy state of mind on the defendant’s part.  This reflects reasonable concerns that innocents not be punished as criminals. As technology has made it possible to cause widespread harm unintentionally, reckless and even negligent wrongdoing has in some cases come to be treated as criminal. But the traditional emphasis on a blameworthy state of mind continues to disfavor the prosecution of drivers for traffic violence.

Even the least blameworthy mental state that can support a criminal charge, that of criminal negligence, requires proof that a defendant’s failure to perceive a risk constituted a “gross deviation” from what a reasonable person would have perceived in the same circumstances. Given the risky conduct so common in traffic — such as speeding and failure to yield — it is difficult to convince jurors, who may do these things themselves, that such acts constitute a “gross deviation” from what is reasonable.

While “criminality” in a traffic context requires finding a “gross deviation” from what is “reasonable,” the average juror’s definition of “reasonable” is the baseline level of risk-taking in everyday traffic. That baseline risk-taking results in hundreds of deaths and thousands of serious injuries each year, but effectively serves as a norm against which only the most egregious cases of traffic violence can raise a suspicion of “criminality.”

How can our criminal justice system rise above this acquiescence to traffic violence? We all have a role to play, bringing a higher notion of street justice to our service as jurors, and sharing it with others. Prosecutors have a special role in framing and applying social norms in determining which cases are prosecuted, and in persuasively articulating those norms to juries. And prosecutors must rely heavily on the investigation work of police officers, some of whom too readily give up the search for evidence of criminality on the philosophy that “accidents happen.”

But a more direct exit from the misery-go-round of socially accepted traffic violence lies in the enactment of “strict liability” criminal statutes that do not require proof of a blameworthy state of mind. The reason police do not announce “no criminality suspected” in cases involving drunk drivers is that vehicular manslaughter and vehicular assault are strict liability crimes that apply whenever a driver kills or injures another while impaired by drugs or alcohol. The liability is not entirely strict — the driver is given the opportunity to prove that the crash would have occurred even in the absence of impairment — but there is no need to prove that the driver intended harm, was aware of a risk of causing harm, or “grossly deviated” in failing to perceive the risk of harm.

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The U.S. auto industry presents a striking paradox. On the one hand, manufacturers design and engineer for passenger safety, incorporating features such as airbags designed to protect passengers even in the face of serious human error.  On the other, manufacturers almost entirely disregard the safety of pedestrians, cyclists, and other motorists who foreseeably will be struck by their vehicles.

One might assume that this disregard for the safety of third parties is based on a legal principle that the manufacturer is responsible only for the safety of its customers. But in fact, auto manufactures have been liable to third parties since 1916, when renowned Justice Benjamin Cardozo wrote one of his most influential decisions, MacPherson v. Buick Motor Company.

In MacPherson, Buick had manufactured a defective vehicle that caused injury to the driver, who then sued Buick. Buick didn’t defend on the ground that its product was safe. Buick instead relied on what was at that time an ironclad principle of law: that the manufacturer of a product had no duty to look after the safety of any person other than the product’s purchaser (the driver had purchased the car from a dealer, not Buick directly).

Cardozo rejected Buick’s defense as an outmoded vestige of the pre-automotive era. “Precedents drawn from the days of travel by stage coach do not fit the conditions of travel today,” he wrote. The “needs of life in a developing civilization” required that an auto manufacturer exercise care for the safety of any person foreseeably put at risk by its product.

Why, then, aren’t auto manufacturers held responsible for the harm their vehicles cause to non-passengers? Sometimes they are. In the 1972 decision in Passwaters v. General Motors, the court considered a claim brought by a motorcycle passenger who was injured by the unusual hubcap of a GM vehicle, which had “unshielded metal flanges or flippers which protruded outward. These spun when the wheel rotated rapidly.”

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It is little wonder why the rules of the road for cyclists are so poorly understood. They are hopelessly complex. The first layer of complexity (typical of many areas of law in the U.S.) has three parts: the interplay between state and municipal law governing the same subject matter; the interplay between legislation and administrative regulations; and the common-law system by which judges apply and give new and sometimes unexpected meanings to legislation and regulations.

But there is a second and even more byzantine set of twists to interpreting the rules of the road applicable to cyclists, because much like a typical road, which has no designated space for cyclists, the traffic laws also lack a clearly-marked “designated space” for cyclists.

Under New York state’s Vehicle and Traffic Law Section 1231, cyclists have the same rights and the same responsibilities as operators of vehicles, except when either (1) there is a more specific rule that applies to cyclists, or (2) the rule in question that applies to “vehicles” by its nature has no application to cyclists. The rule, in essence, is that “bikes are like cars–except when they’re not.”

This approach of lumping cyclists along with operators of motor vehicles with an ill-defined “you-know-it-when-you-see-it” exception is a recipe for confusion and controversy. The traffic code should be overhauled from the bottom up, with motor vehicles, human powered vehicles, and pedestrians each being treated as a distinct mode of traffic.

In the meantime, I created a “BikeNYC Law Decision Tree” to assist in determining what law applies to cyclists:

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Warning: this post starts with a lesson in legalese.

A “tort” is a wrongful act, whether intentional, reckless, or negligent, that is remediable through a civil lawsuit (apart from whether the act constitutes a crime or regulatory violation). “Mass tort” litigation results when a product harms many people, creating a public health crisis, triggering a regulatory response from government, and mass litigation by victims. Asbestos use gave rise to what most consider the biggest mass tort ever, involving more than a million claims of death and injury.

But the harm of asbestos pales in comparison to that caused by high-speed personal motor travel. Motoring has caused more than 3.5 million fatalities and tens of millions of serious injuries over the last century, and continues to kill more than 35,000 and seriously injure hundreds of thousands each year in the US alone.

By the numbers, motoring clearly is the biggest mass tort ever. But this fact goes unrecognized to the extent we interpret traffic crashes as discrete “accidents” arising from specific individuals’ “mistakes,” rather than as a pattern of carnage inherent in our car-based transport system. On this point and others, there’s a lot street justice advocates can learn from asbestos litigation. (Disclosure: I have extensive experience defending asbestos claims.)

Asbestos is a fire-repellent, fibrous mineral that was ubiquitous in consumer and industrial products, from children’s crayons to nuclear submarines, into the 1970s. A hundred years ago, it was known that asbestos exposure could cause lung disease. But manufacturers largely ignored the risks, insisting that only heavy exposures in industrial settings were harmful, and that even industrial exposures could be rendered safe with simple precautions such as hosing down dusty workplaces. In other words, asbestos was perfectly safe as long as it was “used as directed.” Because of the long latency period between asbestos exposure and manifestation of disease, the manufacturers’ claims went largely unchallenged, and for decades asbestos use was barely regulated.

Then in the 1960s, solid epidemiological evidence emerged to prove that asbestos exposure caused a variety of lung cancers. Trade unions and the burgeoning environmental movement pushed for the elimination of asbestos use, while manufacturers pushed back, arguing that lives would be lost in fires if fireproofing substitutes inferior to asbestos were mandated.

But the manufacturers lost. In 1972, the federal government responded to the public health crisis by enacting emergency regulations setting maximum asbestos exposure levels. With growing public awareness, victims of asbestos exposure began suing manufacturers. Courts quickly recognized that the existing tort litigation rules could not deliver efficient justice to the growing mass of asbestos claimants, and fashioned a new set of rules. Mass tort litigation was born.

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Editor’s note: Today Streetsblog NYC is pleased to launch “Street Justice,” a new column that examines how the law, the courts, and the police affect street safety in New York. Street Justice is written by Steve Vaccaro and Adam White, two attorneys who’ve been valuable sources for Streetsblog over the years, adding an expert legal perspective to stories about cyclists and pedestrians injured in traffic. Their firm, the Law Office of Vaccaro & White, also pays for an ad on Streetsblog NYC’s sidebar, and I’d like to make clear that the new column is not part of the advertising arrangement between Streetsblog and the firm. While it’s impossible to completely separate the editorial and business decisions of an operation as small as Streetsblog, the decision to launch the Street Justice column was based on my experience relying on Vaccaro and White as sources, and on the potential for their expertise to illuminate issues of interest to our readers. I’m looking forward to running a new Street Justice every Tuesday.

- Ben Fried

If automobile insurance was sold in a classical free market, bad drivers would find it too expensive or impossible to buy insurance, preventing them from driving legally. But in New York, and throughout the United States, there is no free market for automobile insurance. Instead, insurers are required by the state to insure drivers whose records are so bad they can’t buy insurance on their own. The scheme is called the “assigned risk pool,” or by the more innocent-sounding name, the “New York Automobile Insurance Plan.”

About 1 percent of New York State-insured motorists have driving records so poor that they are insured through the assigned risk pool. These motorists are “assigned out” to insurers, who, as a condition of being permitted to write auto insurance to good risks in the New York market, must each take their pro rata share of bad risks.

One percent may seem like a small number, but these risky drivers are by no means evenly dispersed. A study conducted in 1999 found that a whopping 46 percent of Brooklyn insured motorists were in the assigned risk pool. Because auto insurance rates are underwritten in part based on geography, this means that insurance rates for even the best Brooklyn drivers were much higher, due to their proximity to such a high concentration of bad risks. While all insurance involves good risks subsidizing bad to some extent, assigned risk pools do so to such an extent that the result can hardly be called “insurance.”

“Socialism for bad drivers” is more like it.

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