Failing To Exercise Due Care Becomes A Serious Offense


Under Vehicle and Traffic Law Section 1146, a motorist must exercise due care to avoid colliding with pedestrians and bicyclists on any roadway. A violation of this section previously carried a small fine and 2 points.

However, Governor David Paterson recently signed into law the “Hayley Ng and Diego Martinez law” making the penalties for violating this section much more severe. The law was enacted as a result of the tragic deaths of Hayley Ng, 4, and Diego Martinez, 3, who were killed last year when a delivery van that had been left in reverse climbed the curb and hit the children. The driver in question was not charged with any infraction.

Under the amended law, a driver who fails to exercise due care and causes physical injury to a pedestrian or bicyclist is now subject to up to a $500 fine and up to 15 days in jail. Physical injury is defined broadly as “impairment of physical condition or substantial pain”. Penal Law Section 10.00(9).

The penalties are even more severe under the amended law when serious physical injury occurs. In such cases, in addition to a fine (as high as $750) and possible 15-day imprisonment, a requirement to take a driver safety class and, most importantly, a driver’s license suspension may be imposed. Serious physical injury is “physical injury which creates a substantial risk of death, or which cause death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ”. Penal Law Section 10.00(10).

Further, a conviction to this section also creates a rebuttable presumption that such person operated his or her car in a manner that caused the physical injury (or serious physical injury as the case may be). This presumption is significant in that it makes it easier for an injured pedestrian or bicyclist to obtain an advantage in a civil suit against the driver. Two convictions within five years constitutes a misdemeanor.

The law becomes effective on October 12, 2010.  You can read a copy of the amend VTL 1146.

Interestingly, the amended law may indirectly close the loophole which currently exists in the law prohibiting texting and driving.

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3 Comments. Leave new

  • What defense would a driver have if the driver suffered a seizure immobilizing the driver from consciensly operating a vehicle in a safe manner. The reponsibilty of the drivers obligation for damges is not questioned as driving is a privilage not a right.

    • R. Miller,

      Great question. If a motorist experiences an unexpected medical condition, this is a valid defense to a traffic ticket for failing to exercise due care. Of course, if the motorist knew or should of known about the medical condition and failed to act reasonably under the circumstances, then they could be held liable.

      Matthew Weiss

      • Thanks for your response. The medical condition is under ongoing treatment known by the state for which the license is issued, but unfortunately the occurence of when or if another seizere would occur at any specific time are not predictable.
        The type of seizure that occured immobilizes the drivers ability to control or react to operating the vehicle.


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