To Make Cycling and Walking Safer, Put the Burden on Drivers

In June, 24-year-old Emma Blumstein was bicycling along Bedford Avenue in Brooklyn, in the bike lane, when a flatbed truck turned in front of her. She went under the wheels, and was killed.

In May, Mireya Gomez, 50, was bicycling along Roosevelt Avenue in Queens when a car traveling in the same direction struck and killed her.

In April, Mike Rogalle, 58, was walking along the sidewalk of Beekman Street in Manhattan when a GMC SUV jumped the curb and hit him from behind, killing him.

The drivers who killed these people didn't face criminal charges, fines, or receive points on their licenses, according to news reports.

In New York City, drivers who harm those walking or bicycling usually suffer no penalties unless proven to be driving drunk or recklessly, even if they do something obviously against the rules like jump a curb. Sometimes drivers suffer no penalties even if they are drunk or reckless, because by policy New York City police only investigate accidents where someone dies or is on the verge of death.

As New York City prepares to unveil its bike-sharing plan, there has been increasing discussion of whether the laws governing the streets, as well as the enforcement of these laws, are reasonable. Late last month, a group led by Councilman Brad Lander called on the New York Police Department to change the way it investigates traffic accidents.

New York City is probably a safer place to bicycle and walk then it was 10 or 20 years ago. In 2011, 21 people on bikes and 134 people on foot were killed compared with 13 cyclist and 191 pedestrian deaths in 2001. Even though cycling deaths have risen, there are a lot more cyclists out there now — four times as many, says the city. This is in large part because of the 350 miles of bike lanes installed under Mayor Michael Bloomberg, along with continued campaigns about bicycle and driver safety.

But safer is not the same as safe.

One way to change the behavior of drivers is to change the laws, and to enforce more fully and strictly those laws we do have. While no sane driver wants to harm a pedestrian or cyclist, drivers are likely to be more careful if they know that egregious behavior could result in higher insurance rates, points on a license or even losing their license entirely.

"Ultimately, I think the thing that changes people's behavior are the penalties," says Steve Vaccaro, a lawyer in New York City who specializes in bicycle injuries.

Laws already on the books include longstanding rules governing traffic, as well as new ones such as "Hayley's and Diego's Law," which make it easier for police to find legal fault with driver behavior that causes accidents. Police are reportedly seldom applying the law. To change this, there is now an effort to modify the law to make enforcement easier.

Transportation Alternatives, the bicycle and pedestrian advocacy group, has been waging a campaign for the city to give the police more resources to investigate accidents involving people on foot or bicycle. The NYPD Accident Investigation Squad, which is responsible for looking into all traffic accidents in the city, has a staff of 19, a low number in a city that has thousands of accidents annually.

Beyond stronger enforcement, New York could also consider passing laws that establish something known as strict liability for drivers. This would be a fruitful approach, because among other things it would bring the insurance companies in as modifiers of driver behavior. Strict liability, in place in most of Western Europe, means that drivers are held legally responsible for the harm they cause, even if the person on a bike or on foot behaves in an erratic or unpredictable manner. The presumption of fault is on the driver. This at first might not seem fair, but it is when you consider that a contest between soft flesh and hard metal is not one of equals. In Europe the same rule applies if a cyclist hits a pedestrian. The cyclist is presumed to be at fault and the burden is on the cyclist to show otherwise. These sorts of rules would go a long way in modifying the behavior of both drivers and cyclists for the better.

The Netherlands and Denmark have pioneered such laws that, combined with bicycle lanes and the sheer number of cyclists, help make biking there so safe. Parents on bicycles navigate in heavy traffic, groceries and children balanced precariously. No matter. Drivers look out for them. Statistics show that Holland has a bicycle fatality rate many times less than ours per capita, even though few cyclists wear helmets. (You can see a film about strict liability here.)

The pedestrian and bike laws in Great Britain, our legal system's forefather, are closer to ours, although there is a movement to change them.

Right now, New York is caught in a bind. Despite more bike lanes and an increase in the number of cyclists in the last decade, many people still fear riding in the city. But a key ingredient to making cycling safer is to have many more cyclists on the streets, conditioning drivers to share the road.

Passing an American version of strict liability would be a challenge. But it's the right thing to do if cycling is going to truly become part of life in the city.