Distracted, Speeding, and You Kill a Cyclists?
Arrested? Charged? Ticketed? Nope. Welcome to New York.
Well we changed the ending to this story.
By Daniel Flanzig, Esq.
In the summer of 2014 Matthew Brenner was struck and killed by a motorist on Sands Street underneath the Manhattan Bridge in Brooklyn. From the moment of the crash there was more questions than answers. At the scene of the crash, the driver was not arrested or even issued a summons under NYC’s Right of Way Law. The NYPD seemed to perform the bare minimum of investigation which only helped to keep Matt’s family in the dark.
It quickly became apparent that the details of Matt’s crash, as cited by the NYPD, didn’t make sense. Yes, he was riding against the flow of traffic. We also knew there was an available buffered bike lane in the area that Matt failed to use. But even if Matt made these mistakes, why that night did he have to die? Matt was a former bike messenger and an experienced rider. He knew how to handle himself in traffic.
Shortly after the crash, Matt’s mom Franci retained our office. We began our own investigation while the NYPD conducted theirs. We interviewed witnesses, took photos and retained a traffic expert to see if the road configuration and lack of signage in the area may have contributed to the crash.
Several month later we were granted access to the NYPD Collision Investigation Squads (C.I.S.) file relating to the crash. Within the file was a video taken from a NYPD security camera which depicted the event. The video showed what we expected. An unanticipated and sudden move by the driver of the car. While attempting this move, she struck and killed Matt.
Still from NYPD Video Camera of Crash Location
One would think that this manner of driving would be clear and convincing evidence for the NYPD that the driver held some culpability in causing the crash. But this was not the opinion of the NYPD. The matter still was not referred to the District Attorney’s office for criminal charges. The NYPD stood fast in their opinion that the fault of the crash rest solely with Matt. The driver’s insurance company aligned with the police and refused to settle the claim.
We commenced a lawsuit against the driver. Several months later, she appeared for her deposition. At that time we discovered things that the NYPD failed to explore. She testified that on the night of the crash she was late to pick up her friend up at the airport. Being unfamiliar with the area, she was relying on google maps to get her to JFK. During the deposition, we spent a great deal of time discussing her route, road, and lane position immediately prior to the crash, an area the police totally failed to explore. Being lost, we learned that she shifted suddenly from the middle lane of the roadway and onto the entrance ramp of the BQE as a result of being prompted by google. This required her to cross over two lanes of traffic to get to the entrance ramp where she ran head on into Matt. We further learned that right before she made this sudden lane change, she was tailgating the vehicle in front of her. Given the manner in which she was driving, she had no chance to see Matt and Matt to see her. In fact the first time she saw Matt at all was after the impact. All of these factors were never addressed by the NYPD in coming to their conclusions.
Daytime Arial Photo of Scene
Following the drivers deposition, her insurance company settled the case. Her testimony was too damming to survive a trial. However, our fight was still not over. We wanted her held accountable for Matt’s death. Matt’s mom and I had one more stop. A New York State, Department of Motor Vehicles, Fatality Hearing.
In New York State, any driver who is involved in a crash which results in a death is required to attend a statutory Fatality Hearing to determine whether they should be fined or driver privileges suspended. These hearings are supposed to be mandatory. Matt’s mom and members of Family for Safe Streets, a New York City Advocacy group hounded the DMV until it a hearing was scheduled. The hearing, by statute is too held within 60-90 days of the crash. Matt’s was not scheduled for almost two years. Again, welcome to New York.
On a cold March day at a hearing office in lower Manhattan I appeared with Matt’s mom Franci. A few members of Family for Safe Streets joined us as well. Not surprising, the driver who was subpoenaed failed show. In lieu she submitted a self-serving affidavit prepared by her lawyers. The NYPD investigating officer also failed to show. Thanks again NYPD. It looked like it would be up to us to present the evidence to the Administrative Law Judge presiding over the hearing.
We provided the Judge with a copy of the crash video and the driver’s deposition. We argued that the evidence collected showed that the driver made a sudden lane change onto to the BQE ramp without signaling, that she was driving too fast under the circumstance, and crossed over the safety island in order to enter the BQE. We further argued that driver inattention and distraction by way of being lost and distracted by looking at google maps was the cause of the crash. The Administrative Law Judge took it all in and was incredibly sympathetic to Franci. We left the hearing feeling like she heard us but we were unaware whether she would take any action against the driver given the Police findings. At best, we hope for a slight fine.
Several weeks later we received the results of the hearing. For one of the first times in New York State, absent criminality, alcohol or drugs, the Judge REVOKED her driving privileges in the State of New York. The Judge agreed with our presentation that driver, who was lost, distracted by the use of google maps, was traveling at an unsafe speed, did not signal her turn, and crossed over the solid white lines of the safety triangle contributed to the crash.
The Judge went onto to hold “had the [driver] been traveling at a safe speed in the proper entrance ramp lane it is probable that the Decedent would have seen her and not cross the street. In addition, had she been in the proper lane and traveling at a safe speed it is probable that she would have seen the Decedent and been able to make attempts to avoid hitting him”.
The Judge further found the driver violated 4 sections of New York State Vehicle and Traffic law and for each of the violations, revoked the driver’s license and/or driving privileges in the State of New York.
While the NYPD, the District Attorney’s Office, and the Insurance Company all got it wrong, we were able to prove what we always knew, Matt was not the cause of his own death.
Nothing will ever heal the pain of a mother losing a child, but knowing that the driver has been held responsible and that Matt was not to blame, has provided some solace in this sad and tragic event.
About the Author
Daniel Flanzig is a Partner at NewYorkBikeLawyers.com, Flanzig and Flanzig, LLP. They are New York Attorneys focusing in the rights and protection of cyclists across New York. Nothing on this page should be construed as legal advice nor does the use of this page or column create and attorney client relationship. The advice on this page offers a general overview of the laws in New York. Remember, every incident or claim is specific and the guidelines may not be applicable to your particular case. As always, we suggest contacting an attorney with any legal claim or issue before taking action on your own behalf. Daniel Flanzig, Esq
About “Wheels of Justice”
Welcome to “Wheels of Justice” a column co-written by New York Bike Lawyers James B. Reed, Esq. and Daniel Flanzig, Esq. Jim and Daniel are both active Trial Lawyers representing cyclists in New York. With Jim’s office located in Elmira and Daniel’s in Manhattan and Long Island, they have collaborated to produce a monthly column on legal issues for New York cyclists. Each month Jim and Daniel will provide guidance on cycling safety, advocacy, bike crashes or insurance issues relevant to all cyclists across the State. Whether you ride in Albany, Buffalo, Brooklyn Manhattan or Montauk, Dan and Jim have you covered.