The Negligence Law Revolution That Wasn't

In 2017, New York's highest court held that cities could be held liable for failure to adopt traffic calming policies. Why hasn't this ruling led to safer streets?

4 minute read

March 3, 2019, 1:00 PM PST

By Michael Lewyn @mlewyn


Queens Boulevard

Guian Bolisay / Flickr

On December 5, 2004, 12-year-old Anthony Turturro was riding a bicycle in Gerritsen Avenue in Brooklyn, New York, when he was struck by a motorist who was driving 54 miles per hour. In addition to suing the motorist, Turturro and his mother sued the city, presenting evidence that speeding was common on Gerritsen Avenue and that the city had not studied “traffic calming” measures—that is, measures such as street humps and narrower street lanes that are likely to slow down traffic and thus preventing crashes. The jury found that the city was negligent, and in 2016 the New York Court of Appeals (New York's highest court) affirmed the verdict. 

At first, pedestrian advocates were exultant. For example, Paul Steely White of Transportation Alternatives* stated: “This ruling from New York’s highest court puts an end to the notion that traffic safety improvements should be subject to debate and contingent on unanimous local opinion." However, it is not clear to me that this ruling has had as much impact as street safety activists hoped: no case outside New York has relied on it, and even in New York City, street safety improvements still get slowed down (pun intended!). For example, the city has delayed plans to slow down traffic on a six-lane stretch of Amsterdam Avenue in Harlem, because a local community board objects to slowing down car traffic. Why has the city continued to follow business-as-usual policies, rather than changing its policies to reflect the risk of tort liability?

To understand the limits of Turturro, we have to read the decision more carefully. In that case, the city argued that plaintiffs had not shown that traffic calming would have prevented the collision at issue. The court rejected this argument, pointing out that even the city’s expert admitted that “people generally drive faster on wide, straight roadways…[and that] traffic calming measures are intended to reduce the overall ‘curve’ of speed.” Accordingly, the jury could reasonably “have concluded that traffic calming measures deter drivers such as [the motorist in this case] from speeding, and that the City’s failure to conduct a traffic calming study was a substantial factor in causing the accident (emphasis added).”

In other words, the key factor in Turturro was not just that the city failed to calm traffic, but also that (despite ample warning in the form of complaints from neighborhood residents) the city failed to even study calming traffic. If the city can plausibly claim that it has studied traffic calming alternatives and made a reasoned decision to reject those alternatives, it can get away with business-as-usual policies. The Turturro court also mentioned that neighborhood residents had repeatedly complained about speeding on Gerritsen Avenue; thus, it is not clear that the city would have been held negligent in the absence of such complaints.

Moreover, Turturro rests on a view of sovereign immunity that is unusually narrow. In most states, the doctrine of "discretionary function" immunity often protects municipalities for liability for negligent street design. Under this doctrine, the city is not liable for damages caused by negligent policy decisions, as opposed to individual acts of carelessness. However, New York does not apply this doctrine to street design cases. The New York courts instead divide government actions into "proprietary" and "governmental" functions, and further hold that street design is a "proprietary function" and thus rarely protected by sovereign immunity.** Because many states do not apply the governmental/proprietary distinction, Turturro may not be relevant to most states.

In sum, a New York municipality can be held liable for negligently failing to calm traffic. But unless the courts interpret Turturro more broadly in the future, this may be true only where the municipality responded to citizen complaints by failing to study the issue. 

*In the interests of full disclosure, I note that I am a dues-paying members of this organization.

**I note, however, that even under New York law a city is immune from liability for negligent street design where "a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury." (Turturro). For example, in Enker v. County of Sullivan, the court rejected the claim of an injured pedestrian because the county's "installation of pedestrian push signals ... was a deliberate and reasonable planning decision made to ensure the safety of pedestrians while navigating the subject intersection, which is the 'very same question of risk' underlying plaintiffs' claim."


Michael Lewyn

Michael Lewyn is a professor at Touro University, Jacob D. Fuchsberg Law Center, in Long Island. His scholarship can be found at http://works.bepress.com/lewyn.

portrait of professional woman

I love the variety of courses, many practical, and all richly illustrated. They have inspired many ideas that I've applied in practice, and in my own teaching. Mary G., Urban Planner

I love the variety of courses, many practical, and all richly illustrated. They have inspired many ideas that I've applied in practice, and in my own teaching.

Mary G., Urban Planner

Get top-rated, practical training

Bird's eye view of manufactured home park.

Manufactured Crisis: Losing the Nation’s Largest Source of Unsubsidized Affordable Housing

Manufactured housing communities have long been an affordable housing option for millions of people living in the U.S., but that affordability is disappearing rapidly. How did we get here?

March 25, 2025 - Shelterforce

U-Haul truck on road with blurred grassy roadside in background.

Americans May Be Stuck — But Why?

Americans are moving a lot less than they once did, and that is a problem. While Yoni Applebaum, in his highly-publicized article Stuck, gets the reasons badly wrong, it's still important to ask: why are we moving so much less than before?

March 27, 2025 - Alan Mallach

Close-up of rear car bumper in traffic on freeway.

Research Shows More Roads = More Driving

A national study shows, once again, that increasing road supply induces additional vehicle travel, particularly over the long run.

March 23, 2025 - Road Capacity as a Fundamental Determinant of Vehicle Travel

Aerial view of Grants Pass, Oregon with fall foliage and hills in background with a cloudy sky.

Judge Halts Enforcement of Anti-Homeless Laws in Grants Pass

The Oregon city will be barred from enforcing two ordinances that prosecute unhoused residents until it increases capacity and accessibility at designated camping sites.

March 31 - Street Roots

Colorful murals on exterior of Hollywood High School in Los Angeles, California against night sky.

Advancing Sustainability in Los Angeles County Schools

The Los Angeles County Office of Education’s Green Schools Symposium brings together educators, students, and experts to advance sustainability in schools through innovative design, climate resilience strategies, and collaborative learning.

March 31 - Los Angeles County Office of Education

Rusty abandoned oil well and equipment with prickly pear cactus next to it in West Texas.

Using Old Oil and Gas Wells for Green Energy Storage

Penn State researchers have found that repurposing abandoned oil and gas wells for geothermal-assisted compressed-air energy storage can boost efficiency, reduce environmental risks, and support clean energy and job transitions.

March 31 - Pennsylvania State University