Failing To Exercise Due Care Made A More Serious Moving Violation

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

However, Gov. 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 passed 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 jumped the curb and hit the children. The motorist in question was not charged with any offense.

Under the amended law, a motorist 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 offense allows for a rebuttable presumption that such personal operated his vehicle 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 5 years constitutes a misdemeanor.

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

The amended VTL 1146 becomes effective on October 12, 2010.