Sarah Goodyear

Even in walking cities like New York, the criminality of drivers who kill pedestrians is far from clear.

On one day last week, within hours of each other, two women standing or walking on New York City sidewalks were killed by drivers

One of those senseless deaths happened in Manhattan, and one in my Brooklyn neighborhood, where a woman named Martha Atwater stepped out of a bagel store after buying cookies there for her family. A few steps away, she was struck by a sport pickup truck whose driver had mounted the curb and come up onto the sidewalk. When I saw the picture of where the crash had occurred, I had to sit down. I had been in that exact spot about 20 minutes before it happened. Not that there’s anything particularly remarkable in that for anyone but me. I’m just one of hundreds of people who walk that stretch of pavement every day.

A few days before Martha Atwater and the unidentified woman in Manhattan died, a man was hit by an SUV driver who jumped the curb in front of Saks Fifth Avenue. A few days after the women were killed, an 83-year-old man’s foot was severed when a driver came onto the sidewalk while parking in Queens and crashed into a storefront. Criminal charges are likely in the Queens case, because the driver fled the scene, but not in any of the others.

These crashes are shocking, and yet not all that uncommon. Exact figures are hard to come by. Data from the New York State Department of Transportation suggests that as many as 10 percent of people struck by cars are “off road” – that is, on the sidewalk or in their homes. News coverage uses the same rote phrases to describe these tragedies over and over again: the cars “mow down” pedestrians, or “plow through” a group of people. Incongruous agricultural metaphors for horrific and bloody events, such as the death of UPS worker Mike Rogalle in the Financial District, or of Mary Gater on a neighborhood street in Queens. The list goes on.

New York City’s Department of Transportation has done amazing work in carving out more space for pedestrians and reducing traffic fatalities. But in a city where life is lived on the sidewalk, where pedestrians have opinions about the right and wrong way to walk down a busy street, where street seating is provided by businesses and government alike as an essential public amenity, drivers still all too often jump the curb and strike pedestrians in the one part of the streetscape that is supposed to be reserved exclusively for them. And while you might think there would be automatic criminal consequences for doing so, you would be wrong.

In New York, unless the driver flees the scene (as happened in the Queens case mentioned above) or is intoxicated, crashes that kill pedestrians rarely result in criminal charges. “No criminality was suspected” is the mantra of the NYPD when it comes to pedestrian and cyclist deaths in general. The tepid police response to traffic deaths is even more jarring when applied to cases in which the vehicle actually leaves the roadway and enters what should be inviolate pedestrian space.

The lack of police enforcement is glaring enough that it was the subject of hearings in the City Council last year:

“I want to know that the police department is doing to track down these scofflaws,” said [council transportation committee chair James Vacca.] “We have to bring these people to their senses. We don’t accept gun violence as a way to die. We shouldn’t accept traffic deaths as a way to die either.”

In 2009, the whole city was shocked by a case in which two preschool children, Haley Ng, 4, and Diego Martinez, 3, were killed when a van left idling and unattended on a Chinatown street jumped the curb and hit a group of children returning to their daycare center. Eleven others were injured, but the driver wasn’t charged. In 2010, a law known as Haley and Diego’s Law was passed in Albany to make it easier to bring charges against reckless drivers. But that law, and another known as Elle’s Law after Elle Vandenberghe, a 3-year-old girl gravely injured while walking in a crosswalk, have remained underused because of an NYPD policy that discourages cops from arresting careless drivers unless the officers happen to have personally witnessed the violation that leads to a crash. Further reforms to the law are languishing.

I talked to Steve Vaccaro, a lawyer who frequently represents victims of traffic crashes and is an outspoken advocate for pedestrian and bicyclist rights in New York City, and asked him to explain how running your vehicle up onto a sidewalk crowded with pedestrians can be seen as anything other than reckless. He explained to me that recklessness is in the eye of the beholder.

“The standard for criminal charges is that the risk you take has to be a gross deviation from the risk a reasonable person would accept,” he says. “It’s about the community norm.”

And the community norm is to accept the explanations proffered by drivers such as the one who killed Martha Atwater – who, according to an unnamed police source quoted in the news, said he had suffered a diabetic blackout. Other drivers are let off the hook after simply “losing control” or hitting the gas instead of the brake. The ease with which pedestrian deaths are accepted by police as just unfortunate “accidents” has led to a deep cynicism among many observers of street safety in New York.

Shouldn’t the community norm instead be an understanding that if you drive your car in such a way that you end up on the sidewalk in the middle of one of the world’s most pedestrian-rich environments, you have somehow failed in your responsibility as a driver? Obviously, there are extreme circumstances, such as mechanical failure, in which a driver is not in any way at fault. But why are we so quick to dismiss the mayhem caused by motor vehicles as inevitable?

In the course of researching this piece, I read dozens of accounts from all over the country of people killed and badly injured by cars going onto the sidewalk. I also found this rather astonishing nugget of advice on the site of a Los Angeles personal injury lawyer (emphasis mine):

Pedestrians often exercise extra caution while crossing the road or walking in the shoulder of the road, however it is common to feel at ease while walking on a sidewalk.  While walking you should always watch the vehicles in the road around you and as a driver it is important to be alert and aware of pedestrians at all times while driving.

But you can’t “watch the vehicles” that come up on the sidewalk from behind you at a high rate of speed. You can’t get out of the way when three cars spin out of control onto a crowded sidewalk after crashing in the roadway. You can’t walk along a New York street on alert for cars as if they were predators in a jungle. And you shouldn’t have to.

“It is common to feel at ease while walking on a sidewalk.” As well it should be. The community norms must change.

Top image: A makeshift shrine in memory of Martha Atwater, who was killed on a Brooklyn sidewalk last week.

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