Brooklyn Heights

Drivers losing control: What recourse do victims’ families have?

February 28, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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Last week, Martha Carr Atwater, 48, a well-known Brooklyn Heights resident and Emmy Award-winning TV writer, was struck and ultimately killed by an erratic driver on Clinton Street near Atlantic Avenue. The driver survived.

While the neighborhood and the victim’s family attempts to grapple with this tragedy, authorities say that the accident may have been preventable.  An NYPD source told the New York Post that the 53-year-old driver of the Honda Ridgeline vehicle “may have lost consciousness because of his diabetes.”   With the police reporting no immediate criminality, it is not likely that the driver will be arrested or charged in the victim’s death.

The only reprieve, if one is being sought, of the victim’s family is to bring a civil lawsuit against the driver.

“We get cases like this everyday,” said Nicholas Timko of Kahn Gordon Timko & Rodriques P.C. A former president of the New York State Trial Lawyers Association, Timko informed the Brooklyn Daily Eagle that the cause of action would be negligence. But in instances where a medical condition, such as diabetic shock, impairs the driver, does negligence still apply?

“It may be tricky but, the answer is yes,” Gary Zucker of Zucker & Bennett, P.C., said.  “It is tricky because in cases involving medical conditions you have to obtain a court order to access medical records. There has to be a reason to believe that diabetes [to continue with the example] caused the accident.”  

In cases involving medical conditions, multiple questions are raised. “Did the driver know of the medical condition but failed to take appropriate medication? Or was the condition unexpected, like a heart attack?” noted attorney Alan Ripka.  
There are times when accidents are caused because a driver merely fell asleep at the wheel. “Drowsiness is different from an illness,” said Ripka.  Accidents caused by a tired driver occur more often than not, but finding criminality in drowsiness is extremely difficult.  

In 2011, a Chinatown bus crashed on Interstate 95, killing 15 passengers and severely injuring many more. The driver, Ophadell Williams, was accused of being extremely fatigued while behind the wheel. A Bronx jury ultimately found Williams not guilty.

The difficulty in prosecuting drowsiness in the criminal realm has not thwarted efforts to find civil liability in fatigued drivers that strike and kill or injure.

“We had a case where a waiter had worked a double shift, fell asleep while driving and struck a person changing a tire on the side of the road,” Ripka recounted.  The case ultimately settled. “The driver felt horrible about the accident … he was trying to hold his eyes open, but you have an obligation as driver to assess your condition.”

Attorneys and lawmakers alike are exploring the possibility of using technology to assist in preventing accidents of this nature. Aside from sudden medical conditions, technology exists that would drivers awake or prevent drunk drivers from getting behind the wheel.

A device known as a breath test ignition interlock device would require drivers to blow into breathalyzer to measure blood alcohol content and render a vehicle inoperable if the driver’s BAC is above the legal limit. Another tool is the “drowsy driver” alert system. This instrument, already available in many luxury cars, issues a visual and audible alarm to alert the driver if he/she is dozing off while driving.

“These technologies are certainly valuable,” Timko noted. But, he continued, “It is not going to prevent every instance of drunk driving or driving while drowsy.”  

Zucker thinks the technology is “terrific.”  “Everything comes down to cost,” adds Ripka. A potentially less expensive option offered is rumble strips, grooves or raised pavement markers on roadways to alert inattentive drivers.  

“This city cannot even fix potholes,” chided Timko. “I am not sure how the city would accomplish putting down rumble strips.”

Updated March 18, 2013

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