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New York’s high court says city’s unsafe street design makes them liable for injuries and deaths

Posted by on January 10th, 2017 at 2:57 pm

Advocates in New York City are all abuzz about the ruling.

It happens way too often: Someone is seriously injured or killed at a location that’s a known traffic safety hot-spot. As an activist, it’s infuriating. I can only imagine what it’s like for the family and friends of victims.

After years of assuming cities had blanket immunity from liability when it came to street design decisions, a recent decision by New York’s highest court has thrown that into question. The court found that the City of New York can be held partly liable for a man’s death because they knew the road encouraged speeding and unsafe driving but they failed to study and implement measures to mitigate the risk.

The ruling is being hailed as a “landmark” and “game-changing” decision by New York City nonprofit organization Transportation Alternatives. Here’s what they said in a statement last week:

“The New York high court just ruled that the City can be held liable for failing to study and implement traffic calming measures, which the jury determined were a major factor contributing to the crash. In a 2004 incident, the driver was traveling at 54 mph on Gerritsen Avenue, which had a speed limit of 30 mph. Prior to the incident, the City had been advised by local residents, elected officials, and the Department of Transportation that speeding was common on the street, but that no sufficient speed study or traffic calming review was performed. The Court found the City liable for failing to adequately study and mitigate the road conditions that contributed to the speeding, stating that “an unjustifiable delay in implementing a remedial plan constitutes a breach of the municipality’s duty to the public.”

Experts testified during the trial that “it was known among traffic engineers that straight, wide roads” that lack pedestrian-friendly features “encourage speeding because drivers feel more comfortable on roadways with those characteristics.” The Court distinguished these types of thoroughfares from streets that have traffic calming measures in place, which “cause drivers to be more cautious” and “are known to reduce the overall speed on roadways.” The Court took NYC to task, noting that “[e]ven the City’s expert agreed that the design characteristics of a roadway influence driver speed, and that people generally drive faster on wide, straight roadways, regardless of the posted speed limit.” The jury and the Court relied in part on this evidence for their decision. The ruling is a major development because it means the City can potentially be held liable for unsafe street designs.”

Upon hearing about the ruling I immediately thought of several Portland cases where people have been killed in sections of roadway with notorious backgrounds: Fallon Smart was hit by a man driving 60 mph in a 30 mph zone on SE Hawthorne Blvd and several nearby business owners and activists said they’ve have been complaining about speeding in that section of road for years; Martin Greenough was hit and killed while biking on a section of Lombard that had been flagged several times*; Mitch York died after being hit by a speeding driver on the St. Johns Bridge — a bridge with a design that is so unsafe it nearly led to a lawsuit by bike advocates.


We asked local lawyers how this ruling in New York might influence Oregon cases.

Charley Gee is a personal injury lawyer who specializes in biking and walking cases. He said that while the ruling won’t have direct, precedent-setting standing in Oregon law, it could have an impact. “A court could, if a similar case was brought in Oregon, look at the New York case to guide their own interpretation of the law and decide if Oregon law provides for a similar ruling or a split between the states.”

Lawyer and Bicycling Magazine columnist Bob Mionske said the decision in New York is a watershed moment for cycling advocates. “Traffic violence is the issue for advocacy efforts and this decision opens the door to holding liable the only party who can make the changes necessary for a safer transportation environment. I applaud their decision as all cycling advocates should.” Mionske said he thinks the ruling will lead to more lawsuits against public entities for unsafe road design. Whether or not courts will side with victims remains to be seen.

New York has weaker immunity laws than Oregon does (meaning it’s easier to sue the state). In Oregon, Mionske said, we have “limited state immunity”. Discretionary decisions (ones that require some level of judgment from the agency) are immune, whereas ministerial acts (merely applying an existing law or policy) are not. The argument would be whether or not unsafe road design is discretionary or ministerial.

“My guess is that the Turturro decision out of New York Court Of Appeals,” Mionski shared, “will be used as support in other jurisdictions and we will see some jurisdictions agree with NY and others continue to apply their state’s sovereign immunity statutes, especially in states with ‘absolute’ state immunity.”

For a more detailed look at the ruling and its implications for transportation reform activists, check out the coverage (and comments) from Streetsblog NYC.

*After Greenough’s death ODOT promised they would do an analysis of the road design. We’ve asked for that analysis and will share what we find out.

— Jonathan Maus: (503) 706-8804, @jonathan_maus on Twitter and jonathan@bikeportland.org

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25 Comments
  • Dick Button January 10, 2017 at 3:04 pm

    ODOT and PBOT better CYA!

    Acronyms are fun.

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  • Todd Boulanger January 10, 2017 at 3:28 pm

    Back when I worked in public works/ transportation…I sometimes would hear advocates describe the condition of the lack of action taken about a “dangerous” arterial once notified by the public, as

    “‘how many traffic engineers, have to die [on that road] before it is fixed?’

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  • Skip January 10, 2017 at 3:29 pm

    The significant change will really take place when traffic engineers with PE’s start losing their licenses over unsafe roadway designs. Currently, they are granted immunity from prosecution and politicians have largely enabled their efforts to facilitate fast, free moving traffic in deference to their constituents.

    Imagine, if you will, what would happen if Traffic Engineers were treated in the same way as these structural engineers after this walkway collapse: https://en.wikipedia.org/wiki/Hyatt_Regency_walkway_collapse

    Every day in this country, this number of people are injured and killed by roadways and motorists, and yet, the engineers and politicians who enable this carnage keep their jobs. Until their jobs depend on safety and not “Level of Service” we will continue to see these levels of death and injury.

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    • paikiala January 10, 2017 at 4:44 pm

      The same could be said for operators of automobiles.

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    • B. Carfree January 10, 2017 at 6:30 pm

      Our standards for traffic engineers in this state are unbelievably low. Eugene’s former head traffic engineer, (Evil) Tom Larsen, worked without the required state license during three separate periods over a twelve to fifteen year span. One of those unlicensed spans was something like six years long. He just had his stamp’s expiration date altered and kept on approving dangerous road designs.

      When his lack of a proper license was finally pointed out to the city, they kept him doing the same work but had another employee approve it. After several months, this became public and he was fired and fined by the state. Incredibly, even after three strikes, he has apparently gotten his license back (if I can believe what I hear from staff at public works).

      If this guy can obtain a license, clearly the state standards are in need of an upgrade.

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    • q January 10, 2017 at 10:51 pm

      I don’t think going after engineers’ licenses is where the focus should be. Most traffic safety problems aren’t related to negligent engineers.

      Knowledge is also evolving, and many streets that are currently not safe were designed by engineers who diligently incorporated the tools that were understood at the time to achieve safety.

      I also doubt it’s true that traffic engineers are immune from prosecution, especially those not employed by public agencies.

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    • wsbob January 11, 2017 at 3:37 am

      Cities employ engineers, not vice-versa. Cities decide what street designs to approve. The streetsblog story starts out:

      “The Court of Appeals, New York’s highest court, ruled that New York City and other municipalities can be held liable for failing to redesign streets with a history of traffic injuries and reckless driving. …” streetsblog

      The story is reporting that it’s not the design, but not redesigning a street that’s shown to have a history of bad driving related incidents, that the court finds cities could be held liable for.

      It’s cities that have to decide whether to approve the designs and advice of engineers they hire to create ways to calm traffic. The story in fact says that the DOT, which would include engineers, suggested the city install various traffic calming measures on Gerritsen Avenue, where the collision occurred, but decided not to upon receiving objections from “locals”.

      Do state or federal departments tell cities which traffic calming measures they must study for a certain street, if that street is the subject of reports of speeding and collisions?

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    • eawrist January 11, 2017 at 9:31 am

      I don’t know enough about this topic, but my anecdotal evidence in Arlington, VA does not support traffic engineer negligence. A major intersection was being redesigned (ie Wilson and Washington) with zero separation between pedestrians/bikes and high speed cars. I wrote to the engineer pointing out flaws in the design. He agreed with almost every point and explained that he rode his bike through the intersection daily and wished for something better. His supervisors and the city council put enough constraints on the project to mute almost any safety considerations in order to retain CAR traffic volumes (despite the extremely high ped and bike volumes for the intersection).

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    • Al Dimond January 11, 2017 at 11:31 am

      In the Hyatt collapse the designers failed to adequately assess the impacts of a design change in a way that they should have, leading to a failure of the structure, something everyone agrees they were responsible for understanding.

      Regarding our roads, hired staff are directed by appointed leaders to design and build roads that move lots of cars, according to established design standards, within some budget. The appointed leaders are selected by elected leaders mostly based on promises to deliver projects that move lots of cars within some budget. If the hired staff go outside the standards, blow the budget, or don’t move the cars, they’ll surely be fired! If the appointed leaders blow budgets or don’t move cars they’ll surely be replaced! If people vote for politicians that promise to fight congestion and not ones that promise to fight for safety, they’ll put that pressure on their department heads. That’s democracy.

      Of course we need better standards and practices from national organizations, so that following established design standards results in better roads and intersections. But it’s also a political problem: if we elect leaders that demand car-head solutions from departments we’ll get car-head solutions. Courts may step in to protect minority interests against excesses, but it would be pretty absurd for the court to punish individual engineers that would have been fired for doing what the court suggested!

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      • wsbob January 11, 2017 at 12:46 pm

        Why, the unnecessarily demeaning terminology you’ve chosen to use towards people interested, concerned and responsible for providing for travel by motor vehicle? I think you know to what I’m referring, so I shouldn’t have to write it here. Use of it doesn’t help people to focus their thoughts on arriving at reasonable and effective measure to take towards countering the kind of driving that caused the collision on Gerritsen Avenue in NYC.

        Your second paragraph sums up fairly well, the correlation between the design of streets we have, and the people we elect to office. People that are the public expect their elected persons and people they hire, to address and resolve travel congestion problems the best they can…or out they go. Sometimes. It’s people that are the public, ‘we’, that fundamentally are responsible for the driving excesses occurring on streets. We tell the electeds what we want, and give them the money to do it with.

        Nobody really seems to have a sure-fire, affordable idea for stopping the kind of driving, where, out of tens of thousands of people driving, one person decides to go double the speed limit, or nearly so, and drives into a vulnerable road user.

        Threat of lawsuits may likely have cities studying more intently, anti-excessive driving measures that could counter the tendency some people have, to drive badly. Which measure can accomplish this trick, is not so certain.

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        • q January 12, 2017 at 9:48 am

          What was the “unnecessarily demeaning terminology” you referred to?

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  • lop January 10, 2017 at 4:18 pm

    How is this so different from cases where the state was held liable, or paid out because they expected to be held liable, for injured/killed motorists?

    http://www.oregonlive.com/portland/index.ssf/2015/12/portland_commissioner_amanda_f_14.html

    It seems a natural extension of that liability.

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  • peejay January 10, 2017 at 4:36 pm

    So many potential cases in and around Portland. The number of deaths on Division St alone amount to almost a class-action against PBOT and the City Council.

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    • Middle of the Road Guy January 11, 2017 at 8:41 am

      More payouts = fewer funds for improvement.

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  • Tom Hardy January 10, 2017 at 4:38 pm

    Look at how our illustrious city commissioner who is definitely anti-Bicycle made out when her husband was killed by a driver that “Lost control” and cut across a freeway dividing expanse.
    The other driver was held liable but ODOT and the insurance paid her off.
    You beat me to it lop!

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  • Legal Beagle January 10, 2017 at 9:58 pm

    Solution to the problem of unsafe roadways is obvious and inexpensive: ban non-motorized vehicles from those roadways. Problem solved. Nothing to see here, move along.

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    • q January 11, 2017 at 1:22 am

      Because the overwhelming number of car crashes with injuries or fatalities involve bicycles?

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    • Kyle Banerjee January 11, 2017 at 5:31 am

      Or just sue all jurisdictions every time a design or maintenance issue can be associated with an injury or death. Don’t forget to sue if snow, ice, or plain ol’ wet surfaces are contributing factors.

      This is a super practical way to improve the roads. No chance of simply bankrupting the system or draining resources that can be used to make things better. No siree…

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      • Middle of the Road Guy January 11, 2017 at 8:46 am

        Exactly.

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      • B. Carfree January 11, 2017 at 11:32 am

        After a city loses the first few million, don’t you think they just might address some of the problems their traffic engineers and planners have created? Are they really that resistant to learning?

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        • pruss2ny January 12, 2017 at 6:09 am

          I don’t understand (honestly) why after a city loses “the first few million” that they wouldn’t use the liability as leverage to limit roadways that vulnerable users can use.

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        • wsbob January 12, 2017 at 11:47 am

          “…some of the problems their traffic engineers and planners have created? …” b carfree

          I think it’s missing the source of the problem to assume traffic engineers and planners are the party responsible for people driving too fast with regards to vulnerable road users.

          On Gerritsen Avenue where the collision occurred in NYC, it wasn’t the road design that caused the collision in which someone was fatally injured. It was someone driving way too fast for that street, that caused the collision.

          The city wasn’t obliged to use any one particular means to bring within the speed limit, the mph speed of even the worst violators of the speed limit…it just had to somehow successfully eliminate the worst occurrences of excessive speeding on that street. The city apparently chose to approve Gerritsen Avenue’s street design, and built out the street according to the design.

          Then, as can happen on nearly any street, somebody driving decides to disregard all reason and self restraint and sense of responsibility, and bring their motor vehicle to a mph speed that’s far above the posted mph speed limit. Can the city rightfully say: ‘This excessive speeding is not our fault, but is the fault of our traffic engineers’ and our planners’ design for this street…which we, the city, approved.’. ?

          The city, from residents, had years in advance notice of the fatal collision on Gerritsen, about extremely excessive speeding on the street. In those years prior to the fatal collision, what things did the city do that were successful, to arrest the extremely excessive speeding problem? The continuing occurrence of excessive speeding on this street, was directly associated with efforts the city did or didn’t do to stop it from continuing to happen.

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  • JeffS January 12, 2017 at 11:03 pm

    I have a problem with this line of thinking, but especially so when applied to road design.

    I have always felt that our unwillingness to hold motorists responsible for their actions to be extremely problematic. Now, we seem to be doubling down and reinforcing the idea that human error collisions are not the fault of that human. In my conversations, I am usually able to convince people that the driver who caused the collision is the responsible person, but time after time, the retort is along the lines of “what if they don’t have insurance”. “what if they can’t pay”, “they should be able to sue someone”. The idea of extracting reparations overrides the logic of responsibility.

    I can only come to the conclusion that governments should immediately exit the business of building roads, and/or ban all cars. They are not safe. They have never been safe. They will never be safe. I’m not advocating this, just saying it’s not logical to be in the business with huge liability and no profit. It’s like running a non-profit cigarette business.

    Portland is definitely setting themselves up for a fall with Vision Zero. Pretending that zero deaths is achievable through government action will easily be spun as an admission of guilt to a jury.


    Obviously, safer and less safe exist, but this a scenario where the entire infrastructure of a city, state or nation could be ruled lawsuit-ready by a single court case.

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  • Cindy Winter January 13, 2017 at 4:40 pm

    Autonomous vehicles — they can be programmed to travel no more than (whatever) mph. They can “see” cyclists and pedestrians, and avoid them. I’ve even read that by 2030 it will be illegal for humans to drive a car — sounds like a great idea to me!

    Google’s original impetus, at least in large part, was to improve public safety by reducing auto-related injuries and deaths. Even if the initial AV’s on the roads are only half as dangerous as the human-driven vehicles, that will be an improvement.

    Let’s try to fast-forward the future!

    P.S. I’m referring here to fully autonomous AV’s, not to the semi-autonomous hence distracting versions now so often on our roads.

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    • JeffS January 14, 2017 at 6:12 pm

      Good luck with that.

      Taking “grandpappy’s” pickup off the road will be as simple as taking his old double barrel. The entire US narrative of freedom centers around the automobile. Maybe forcing people to trade that in for a POS designed to be replaced every couple of years will elicit the same emotions. Who knows.

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