An MTA report obtained by the New York Post led a reporter there to argue that there's no way bus driver Theresa Gallagher could have seen 64-year-old John Lavery when she ran over him in a Bronx crosswalk in October (the actual report finds that the crash was "preventable" and Gallagher's actions to blame—see update below). Gallagher was the first bus driver arrested under the city's Right of Way law, which makes it a misdemeanor to fail to yield to pedestrians and cyclists, punishable if the victim is injured by as much as a month in prison and a $250 fine.
The Post describes the law as "automatically" hitting drivers with charges, and argues that, because investigators found the streetlight was broken when Gallagher hit Lavery, she "never should have been cuffed." (It also notes that an autopsy found Lavery had methadone in his system at the time of his grisly demise, as if that gives him less of the right of way in the crosswalk.)
"The law has created a situation where bus operators that were not acting recklessly or negligently were arrested and treated like common thugs," John Samuelsen, president of the Transport Workers Union Local 100, told the Post.
The problem with the Post's assessment is that police and Bronx prosecutors waited three months to charge Gallagher, meaning they didn't make a split-second decision to arrest her, but rather sat down and looked at whether there was probable cause to believe Gallagher failed to yield when she drove into Lavery, and decided that there was. That's not exactly the treatment that so-called "common thugs" facing misdemeanor charges have customarily received in New York. And of course, Gallagher was freed without bail—again, not the norm for low-level arrests—and is innocent until proven guilty, so if she wants to raise the streetlight as an issue that exonerates her, she can do so at trial or in meetings with district attorneys.
Six bus drivers have been arrested under the law since last summer, and Samuelsen has made no bones about the TWU's stance that drivers "should not be held accountable." The union is backing a Council bill that would exempt bus drivers from the Right of Way law, meaning prosecutors would have to prove recklessness rather than just failure to yield in order to charge them.
Update: 2:50 pm:
We've gotten our hands on the MTA's report and, far from showing that Gallagher "wasn't at fault," as the Post's headline states, the report's authors conclude that the crash was "preventable" and that "the most probable cause of the accident was the actions of the [bus operator]." They call the nonworking streetlight a "contributing" factor.
The report includes the accounts of witnesses and Gallagher about the moments leading up to, and following the crash. Gallagher was driving north on Willis Avenue at about 1:40 am and turning left with a green light onto E. 147th Street when she said she "heard a pop." She stopped, "moved the bus over, and reversed," then got out with an off-duty busy operator to see what she had hit, according to a statement she gave to a supervisor. When a man shined a light from his phone on Lavery's body and told Gallagher someone was under the bus she grabbed his arm and screamed "What did you say?" and "Where did he come from?" according to the man's account. She boarded the bus and, holding the public announcement phone, yelled, "What do I do?" just before a police officer stepped on, the witness said.
A diagram of the crash contained in the report shows a 29-foot trail of flesh and blood behind the stopped bus. Police wrote that Lavery died of a crushed skull. She was driving 11-15 miles-per-hour when she made the turn, which drivers are supposed to make at 5 miles per hour, the MTA found.
"Our conclusion in the report stands for itself," MTA spokeswoman Amanda Kwan said.
Gallagher was out of work collecting workers' compensation as of February and, Kwan said, has since filed for retirement.
In a blog post on the crash TWU spokesman Pete Donohue blames the streetlight and the bus's blind spot, and notes that police report misstates the direction the two streets run. He quotes Gallagher saying, "When I realized what had happened, it felt like the whole world had just fallen on top of me." Asked how he could square the MTA's findings with his employer's claims of Gallagher's blamelessness, he emailed this statement:
It's not a crime. It's a tragic accident involving a bus with a design flaw that causes blind spots and the city's failure to provide safe-driving conditions, namely an illuminated intersection. Sure, the accident was preventable. If the intersection was lit—and not enveloped in darkness because the street lamp was out—perhaps this wouldn't have happened. If the bus didn't have blind spots, perhaps it wouldn't have happened. To say that the bus driver committed a crime defies common sense.