New laws, traffic calming measures needed for vulnerable road users

Last year, Toronto experienced the highest pedestrian death rate in more than a decade — and until cities create traffic calming measures and meaningful steps are taken to pass new laws, the death and injury toll will continue to rise, as will the exposure to civil lawsuits, Toronto critical injury lawyer Patrick Brown writes in The Lawyers Weekly.

Brown, partner with McLeish Orlando LLP and founder of Bike Law Canada, says the statistics are unsurprising.

“One only needs to take a close look how our laws, police and courts deal with bad and negligent drivers. It has made some people state, ‘If you want to kill someone, use your car.’ As odd as it seems, this statement may have some merit. For the longest time the automobile driver has been granted a special status in our society, especially when involved in road violence against vulnerable road users like pedestrians.”

Strides made to curb impaired driving

Although Mothers Against Drunk Driving (MADD) and other organizations have made significant progress in getting the government to increase penalties for impaired driving, the same is not true for those drivers who are distracted, careless and speeding, he writes.

As Brown explains in the article, former medical officer of health for Toronto Dr. David McKeown released a 2012 report that showed small increases of speed resulted in a disproportionately large increase in death. As a result, the 2012 Pedestrian Death Review recommended that municipalities introduce traffic calming measures and set a 30km/h speed limit in all residential areas and a default speed of 40km/h for all others, he says.

Brown says the recent U.S. case of Turturro v. City of New York 2016 NY Slip Op 08579 should be of concern for larger cities like Toronto, as it deals head-on with speed and traffic calming measures.

“The New York Court of Appeals upheld a jury verdict that the city was partially (40 per cent) responsible for injuries sustained by a cyclist hit by a speeding car. Although the city argued it was a police enforcement issue, the jury held that city had a responsibility to control speed and that it failed to put in traffic calming measures that would deter speed based on road design. The case has significance since, as stated earlier, we now have detailed and compelling reports in Ontario that call for traffic calming measures to control speed. Cities that do nothing will no longer be able to simply point at the driver and the police,” writes Brown.

While representing a coalition of various active transportation groups during the 2012 coroner’s reviews of cycling and pedestrian deaths, Brown says the only stats he was able to obtain with respect to the penalties administered against drivers were the number of charges and convictions.

‘Repeated pattern’

“When I reviewed the last 10 years of cases in my cabinet (civil lawsuits on behalf of the killed or injured), I was appalled to see a repeated pattern of either no charges being laid or paltry fines being given. In 2014, Erica Stark was struck and killed while standing on a sidewalk. Last month the driver was convicted of careless driving. To the dismay of the family and the media that was covering the story, the court ordered the defendant to pay a $1,000 fine, probation and a six-month driving ban (five months of which she could use the car for work and emergencies).”

Meanwhile, to deter drivers near pedestrians, 10 U.S. states have passed vulnerable road user laws, says Brown.

“These laws acknowledge that not all road users are the same. Pedestrians, cyclists and other vulnerable road users do not have the protection of seatbelts, airbags and collapsing steering wheels and they are certainly not protected by two tons of steel around them. Therefore added penalties are administered anytime a careless driver injures or kills a vulnerable road user,” he writes.

Brown says requests and meetings have been held with the minister of transportation seeking vulnerable road user laws, including one made by the City of Toronto — many are confident these laws are forthcoming.