Like nearly every auto accident, the question of who is at fault is answered differently depending on the person answering. The National Guard blames the pedestrian, who died after being hit by a personnel carrier headed to pick up relief supplies. A spokesperson told The New York Times that the pedestrian disregarded a police escort and “stepped into traffic.”
On the other hand, an eyewitness told Streetsblog that there was no police escort and that the convoy blasted through red lights, nearly running the witness over as well. There were no sirens or other warnings that it was unsafe to cross. Kwok Fu, 82, was not jaywalking or trying to beat the convoy. He was hit by the final truck, which was speeding through the red light to catch up to the other trucks.
An attorney consulted by Streetsblog quite correctly opined that sovereign immunity would not apply to this situation. The Federal Government waived their immunity from lawsuits with the Tort Claims Act, which waived immunity for many, but not all, types of claim. A claim of negligence and wrongful death would probably be allowable.
So, was the National Guardsman negligent? New York's Vehicle and Traffic Law allows emergency vehicles to run red lights, but they are required to slow down and proceed with caution when doing so.
Also, unless the vehicle is a police vehicle or bicycle, it is required to emit an "audible signal", such as a bell, horn, or siren, and be equipped with at least one red lighted lamp. In other words, the lights should be flashing and the sirens blasting.
The statute also raises the standard for liability from negligence to recklessness. Negligence is acting with less care than other similarly situated individuals would exercise. Recklessness is a conscious disregard of a known danger created by acting with less care than is warranted by the situation. It's a further degree of culpability than negligence.
So, whose fault is it? That'll depend on whether you believe the eyewitnesses or the National Guard's spokesman. If the witness that was almost hit is credible, the liability of the National Guard seems pretty clear, as there were no sirens, no lights, and no care taken when blasting through a red light in an effort to catch up with the other cars.
- Discuss Your Case With a New York Personal Injury Attorney (FindLaw)
- Elderly man fatally struck on Canal Street by National Guard vehicle delivering Sandy relief supplies (New York Daily News)
- NYC: Safe for Reckless Drivers, Dangerous for Pedestrians? (FindLaw's Knowledge Base)
- Car Accident Basics (FindLaw's Learn About the Law)