I’ve read several stories in the news about the death of New York City cyclist and retired Supreme Court Judge Marilyn Dershowitz over the 4th of July weekend. This story is disturbing, not just because Dershowitz lost her life, but also because the mail truck driver, Ian Clement, probably will never face justice for what he has done.
The L Magazine reports that Marilyn Dershowitz was riding with traffic on West 29th Street when a car and a mail truck traveling side-by-side attempted to overtake her as the roadway narrowed. The mail truck hit Dershowitz when driver Ian Clement moved right to allow space for the car on his left. The police said of Clement, “He heard a thump, but he thought he hit a bump or a crate. At one point, he thought the car hit him.”
Marilyn’s husband, Nathan Dershowitz, who was biking one block ahead, gave this account of the crash to the New York Daily News, “If [the investigators] did the work and spoke to the people I spoke to, it is inconceivable from what they told me that he did not see her. What I was told was that two vehicles, neither one was willing to yield to another, so they both went through too narrow of a space to get through. She was ahead of both vehicles. The driver just ran her over.”
A cyclist’s perspective of the Dershowitz crash
I haven’t found enough information available in the media to draw a conclusion about the specific cause of the crash. Nevertheless, the information available, combined with my own experience as a cyclist, suggests the most likely scenario was an illegal overtake. That is, the truck driver Ian Clement probably started to pass Marilyn Dershowitz on her left but moved back to the right before being safely clear of her.
The side of the mail truck, in that situation, would have clipped the left side of Marilyn’s body or the left handlebar of her bicycle. The result of that kind of impact is that the left side of the handlebars is propelled forward, turning the front wheel sharply to the right, which causes the cyclist to fall suddenly to the left. The cyclist falls head-first against the overtaking vehicle, either striking the side or landing in the wheel-well, and then going under the back wheel.
I suspect this is what happened to Dershowitz, based on the police description of the circumstances leading up to the crash, the condition of the bicycle in the photos of the crash scene, and Clement’s statement that he heard his truck collide with something.
A motor vehicle bumper that strikes a bicycle wheel from behind usually bends the rim severely, crushing and twisting the wheel into the shape of a heart or pretzel. The back wheel of Dershowitz’s bicycle is still relatively round in this photo, so it seems unlikely that Clement ran her down from behind. The front of Clement’s truck likely would have shown signs of the impact as well, but I suspect there was no damage, since none of the news articles mention it, and otherwise the police probably wouldn’t believe Clement’s claim that he drove away without knowing he ever hit Dershowitz.
One aspect of Clement’s story doesn’t add up, though. Clement claims he heard a thump and initially thought his truck had collided with a car traveling beside him. This suggests the sound originated from the side of his truck, somewhere behind him, which jibes with the rest of the indicators about the nature of the crash. What’s truly hard to imagine is Clement’s claim that he initially mistook the thump that came from the right side of his truck for the sound of a car hitting its left side.
The most likely scenario, in my opinion, is that Ian Clement saw Marilyn Dershowitz on her bicycle and ignored her, either from the beginning or once the cab of his truck was past her. Motorists often overtake cyclists this way, although it’s illegal and creates an extreme danger to the cyclist. It’s less likely but possible Clement never saw Dershowitz at all, as he entered an area of deep shadow from the bright sunlight of a July day.
The police, at the very least, could charge Ian Clement with reckless endangerment and several traffic violations, which I have quoted below from the New York Code. Yet, many of the same news sources that reported the story are also indicating that Clement won’t ever be charged. He won’t pay a penny in fines or spend a single night in jail for killing Marilyn Dershowitz. In fact, he’ll probably keep driving mail trucks.
The bias that favors motoring is so strong that, unless substantial pressure is brought to bear, either by an outraged public or by the legal talent in her own family, Marilyn Dershowitz probably will never receive in death the very rule of law she spent her life upholding for others. She and her family deserve justice for what happened. I hope they get it.
[Note: I've included a photo below that shows a recent example of a motorist crowding me aside in heavy traffic. The white van began to overtake me at less than three feet and started moving right before completely passing me. The driver finishes the overtake at less than two feet, including the extra foot I gained by edging closer to the fog line on the right. This kind of overtake is probably what happened to Marilyn Dershowitz, only with the postal truck passing at a much closer distance and crowding more sharply to the right and into her path.]
N.Y. Code – Section 1122: Overtaking a vehicle on the left
The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated:
(a) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.
N.Y. Code – Section 1124: Limitations on overtaking on the left
No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless authorized by the provisions of this chapter and unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to an authorized lane of travel as soon as practicable and in the event the passing movement involves the use of a lane authorized for vehicles approaching from the opposite direction, before coming within two hundred feet of any approaching vehicle.
N.Y. Code – Section 1128: Driving on roadways laned for traffic
Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:
(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
N.Y. Code – Section 1146: Drivers to exercise due care
Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian or domestic animal upon any roadway and shall give warning by sounding the horn when necessary. For the purposes of this section, the term “domestic animal” shall mean domesticated sheep, cattle and goats which are under the supervision and control of a pedestrian.
N.Y. Code – Section 1212: Reckless driving
Reckless driving shall mean driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor.
N.Y. Code – Section 1180: Basic rule and maximum limits
(a) No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.
(e) The driver of every vehicle shall, consistent with the requirements of subdivision (a) of this section, drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when approaching and passing by an emergency situation involving any authorized emergency vehicle which is parked, stopped or standing on a highway and which is displaying one or more red or combination red and white lights pursuant to the provisions of paragraph two of subdivision forty-one of section three hundred seventy-five of this chapter, when traveling upon any narrow or winding roadway, and when any special hazard exists with respect to pedestrians, or other traffic by reason of weather or highway conditions, including, but not limited to a highway construction or maintenance work area.
N.Y. Penal Law – Section 120.20: Reckless endangerment in the second degree
A person is guilty of reckless endangerment in the second degree when
he or she recklessly engages in conduct which creates a substantial risk of
serious physical injury to another person.
N.Y. Penal Law – Section 15.05: Definition of Reckless
A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.
N.Y. Penal Law – Section 10: Definition of Serious Physical Injury
[...] physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.