An ongoing problem in New York State is the inability of a Police Officer to issue a traffic violation for an event they did not witness. Even if 10 witnesses confirm that a vehicle ran a red light and struck a cyclist, a Police Officer’s ability to write a summons is limited unless the event was actually witnessed by the complaining Officer.
To overcome this problem, New York City recently enacted NYC Admin. Code Sec. 19-190, also known as the “Right of Way Law”. This law allows the issuance of a Summons or even an arrest of a driver for violation of 19-190 even though not actually witnessed by the Officer. By increasing the penalty from a traffic violation to a misdemeanor, a summons can be issued or arrest made as a misdemeanor does not require the officer to actually witness the event occur.
The highlights of the Statute are as follows:
19-190 Right of way:
… any driver of a motor vehicle who fails to yield to a pedestrian or person riding a bicycle when such pedestrian or person has the right of way shall be guilty of a traffic infraction, which shall be punishable by a fine of not more than fifty dollars or imprisonment for not more than fifteen days or both such fine and imprisonment…
,.. any driver of a motor vehicle who violates subdivision a of this section and whose motor vehicle causes contact with a pedestrian or person riding a bicycle and thereby causes physical injury, shall be guilty of a misdemeanor, which shall be punishable by a fine of not more than two hundred fifty dollars, or imprisonment for not more than thirty days or both such fine and imprisonment…
How does this help cyclists in a civil case when the summons is issued?
Earlier this year we received a call from a cyclist struck on W. 20th Street in Manhattan. The cyclist was lawfully in the bike lane when a driver attempted to pull into a parking space between the curb and the bike lane. In a rush to get to the spot, she crossed over the bike lane and struck the cyclist. As a result of the crash, our client sustained a severely separated shoulder requiring surgery.
Photo credit: Google Maps
After being retained, we obtained the Police report. Unbeknownst to our client, the officer issued the driver a summons for violating 19-190, NYC’s “Right of Way” law. This is something we rarely see without an injury classified as “likely to die” or death.
Several months later, we checked the DMV records and learned the driver never contested the summons, entered a plea of guilty, and paid the fine.
How does this help cyclists in a civil case when the summons is issued?
The ability to contest the fault of the crash was now over for the driver. A plea of guilty in NY prohibits the ability of the motorist to re-litigate the issue of fault in a civil action. With this evidence in hand, the matter was settled for the full insurance policy of the driver without the matter even needing to be placed into a suit.
NYC’s “Right of Way” law has been come to an exceptional tool for NYC prosecutors to pursue criminal charges against drivers when just a few years ago, no remedy existed. Typically criminal cases would only be pursued by prosecutors with clear proof of criminality such as driving under the influence or excessive speed.
While some Judges still grapple with the “negligence vs. criminal “aspect of the statute, we have seen an uptick in convictions of drivers that have caused serious injury or death behind the wheel. This includes a rash of prosecutions against MTA bus drivers, much to the dismay of their union. It is our hope that the rest of New York adopts a similar statute seen in New York City to make it easier for prosecutors around the State to pursue charges against reckless and dangerous drivers.
