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Looking out for pedestrians

Rising death rate, lack of traffic calming could see increased municipal liability
By Patrick Brown
February 03 2017 issue

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This past year, Toronto experienced the highest pedestrian death rate in over a decade. While alarm bells should have been sounding a long time ago, civil exposure against the city and province is increasing day by day. The number of road deaths which involve driver on driver in the province has been going down for years. The same is not true for pedestrians.

Is this a surprise? Not at all. 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.

Although MADD and other organizations have made significant progress in increasing penalties for impaired driving, the same is not true for those drivers that are distracted, careless and speeding. Ten or 15 kilometres over the speed limit is an acceptable breach even when someone is killed.

Dr. David McKeown, the former medical officer of health for Toronto, released a report back in 2012 (Road to Health: Improving Walking and Cycling in Toronto) that showed small increases of speed resulted in a disproportionately large increase in death. The study revealed that pedestrians have an estimated 85 per cent chance of dying when hit by a driver travelling at 50 km/h, while the fatality rates decrease to less than 5 per cent when the driver is traveling at 30 km/h. Suffice to say, “speed kills.” It is for this reason that McKeown and the office of the chief coroner of Ontario in the 2012 Pedestrian Death Review recommended that municipalities introduce traffic calming measures and set a 30-km/h speed limit in all residential areas and a default speed of 40 km/h for all others.

Municipalities in Ontario have been repeatedly held accountable for lack of infrastructure and design. Of concern for larger cities like Toronto, is a recent case, Turturro v. City of New York 2016 NY Slip Op 08579. The decision is making waves south of the border since 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.

Over two years ago I was asked by Cycle Toronto to review the penalties administered against drivers. You would think these were readily available, but they are not. While representing a coalition of various active transportation groups during the 2012 coroner’s reviews in cycling and pedestrian deaths, the only stats we could get were the number of charges and convictions. Nothing existed that showed the penalties. 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).

Strikingly, this was a stiff penalty compared to others. Eduardo Leblanc was killed inside a crosswalk when a driver blew a red light. The penalty administered was $700. Bruce Tushingham was killed riding his bike when a driver crossed into the opposite lane and struck him. The fine there was $500. Ryan Carrier was killed by a delivery van making an illegal turn. The driver was ordered to pay $85.

To deter drivers near pedestrians, 10 states south of the border have passed vulnerable road user laws. 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.

Requests and meetings have been held with the minister of Transportation seeking VRU laws, including one made by the City of Toronto. Many are confident these are forthcoming.

However, until meaningful steps are taken to pass new laws and cities create traffic calming measures, the death and injury toll will rise as will the exposure to civil lawsuits.

Patrick Brown is a partner at McLeish Orlando, founder of Bikelaw Canada and recent past chair of the Ontario Safety League.

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