The majority of blog posts about automobiles concern luxury car design, 007 movies, electric cars, or NASCAR racing. Traffic law and roadway planning/maintenance, the automobile’s much less popular counterparts, are conceivably not as often discussed. However, it is these counterparts that have been responsible for the safety of human life on the roads each and every day since mass production of the automobile replaced travel by foot and animal in the early twentieth century. Recently, in Turturro v. City of New York, et al., New York’s highest state court opined on the importance of traffic law and roadway safety, while delivering a clear message to the City of New York to make greater efforts to improve roadway safety. Specifically, the Court of Appeals affirmed a $20,000,000 damages award holding the City partially liable for the failure to conduct an adequate study of whether “traffic calming” measures should have been implemented on a city roadway with known speeding problems.
The case involved a twelve (12)-year old child, Anthony Turturro, who was struck by a speeding vehicle, travelling at least fifty-four (54) miles per hour, almost double the speed limit, on December 5, 2004. At approximately 6:30 p.m. that evening, Anthony attempted to cross Gerritsen Avenue on his bicycle when he was struck by the vehicle driven by defendant, Louis Pascarella. Anthony survived, but suffered serious and permanent injuries, including brain damage, rendering him disabled for life.
Pascarella pleaded guilty to assault in the second degree for recklessly causing serious physical injury. A negligence action ensued against Pascarella as well as the City of New York, which resulted in an approximate $36 million jury verdict finding the defendant Pascarella fifty percent (50%) at fault, the City of New York forty percent (40%) at fault, and Anthony ten percent (10%) at fault. On appeal, the plaintiffs stipulated to the Appellate Division’s reduced damages award of $20,000,000.
The Court of Appeals granted the City leave to appeal, and considered whether “traffic calming” measures should have been studied by the City prior to the accident at issue. “Traffic calming” measures are intended to lower the overall speed on a roadway by modifying driver behavior. Such measures include speed humps, narrowed lanes, rumble strips, roundabouts, and raised crosswalks. The 6-1 Court, in a lengthy decision authored by Judge Eugene Fahey, affirmed the judgment of the lower court finding that the evidence was legally sufficient for a jury to have found that the City’s negligence in failing to implement traffic calming measures was a proximate cause of the accident, and that the City was not entitled to qualified immunity as it contended.
In reaching its decision, the Court focused on the fact that the City had received numerous, repeated complaints between 2002 and 2004 about speeding on the roadway prior to the accident at issue. Despite the City having duly routed the complaints to the Intersection Control Unit (ICU) of the Department of Transportation (DOT), and then referring the speeding problems found by the ICU to the police, the Court affirmed the jury’s finding that these actions were not sufficient and that the City should have gone a step further and referred the speeding problems to the Planning Unit of the DOT to study and implement traffic calming measures.
The Court of Appeals further affirmed that it was within the City’s “proprietary role” to maintain the road in a reasonably safe condition, rather than within its “governmental capacity” to police speeding, which would have shielded the City from liability under the “governmental function immunity defense.”
In Judge Pigott’s dissent, he expressed strong disagreement with the majority’s reasoning and was insistent that the City was immune from liability under the circumstances. He proffered that a municipality’s duty to maintain safe roadways extends only to keeping the roads safe for drivers who follow the law, i.e., by repairing potholes or removing standing water. He was adamant that the duty does not extend to the municipality’s efforts to deter or prevent unlawful activity such as speeding, and in such cases the government would be immune from liability because it would be acting in its governmental capacity to protect the public. Judge Pigott reasoned that as a result of Turturro, municipalities throughout New York will now “be hauled into court whenever a plaintiff who has been injured on the road at the hands of a speeding or intoxicated motorist is able to identify alternative measures the government could have taken to attempt to prevent the accident.”
Judge Pigott’s concern, however, appears to have been considered by the majority in its disclaimer in the majority opinion that the decision did not stand for the proposition that a municipality has a proprietary duty to keep its roadways free from all unlawful or reckless driving behavior. Rather, the majority emphasized that its decision was based on the specific circumstances of Turturro, in which the City was made aware through repeated complaints of ongoing speeding on a roadway, and nonetheless failed to maintain the roadway in a reasonably safe condition by way of traffic calming measures.
This decision of the Court of Appeals will likely compel the City of New York to make greater efforts to maintain its roadways in a reasonably safe condition, rather than risk high figure jury verdicts like Turturro. Following Turturro, it would certainly be prudent particularly for a municipality on notice of traffic and roadway problems to ensure thorough efforts to exhaust all of proprietary remedies are taken in efforts to rectify any traffic or roadway issues. As such, until our roadways are fully populated with driverless vehicles programmed to obey traffic rules and to anticipate and prevent accidents, it appears we may expect to see more and more traffic calming measures implemented.
The full text of Turturro v. The City of New York, et al. is available at https://www.nycourts.gov/ctapps/Decisions/2016/Dec16/196opn16-Decision.pdf