I recently blogged about Dan Hanegby, a young investment banker, father of small children, who was killed the other day in a collision with a bus while he was riding a Citi Bike in Manhattan. That post was about how relatively “safe” Citi Bikes seem to be; this was the only fatality in four years of the City-operated bike-sharing program’s existence.
After I posted that blog, the New York Times and the Gothamist published articles with additional information about the accident. This most recent development in the case illustrates a grave and common problem with how the police investigate and report motor vehicle accidents.
The Times had originally reported that the cyclist was killed after he “swerved toward the bus, fell and was caught beneath one of the rear wheels”. This is the version of events that the NYPD gave the widow.
But we now learn that the widow found this version of events unbelievable. Her husband was a terrific and agile athlete (he had been a star Tennis player at Brown University) and was an especially skilled and accomplished cyclist. His “swerving” toward the bus would mean he lost control of his bike, which in her mind was very unlikely.
Fortunately, she had good friends. One of them sought out and obtained surveillance videos from two businesses on 26th Street, the site of the event. (Why didn’t the police do this?) The videos show Mr. Hanegby cycling straight on – with no “swerve” – down West 26th. The bus traveling in the same direction then is seen trying to pass him on the left in a portion of the street that had been narrowed because of a parked van just to the right of Mr. Hanegby. Mr. Hanegby’s front wheel is then clipped by the bus (no “swerve”!), which caused him to fall, and then the back wheels of the bus run him over.
I am pretty sure– based on my experience – that the police office arrived at his or her erroneous conclusion regarding the “swerve” at least in part based on interviewing the bus driver. When one of the involved parties to a motor vehicle accident is alive and conscious, and the other is either dead or unconscious, the police officer often accepts at face value the only “story” available, i.e., the account of the conscious, surviving motorist.
This is of course very unfair to the dead or unconscious victim. In this particular case, the unfairness is even more egregious. The NYPD could have and should have obtained surveillance videos from the surrounding businesses, but just did not bother. Instead, the NYPD called the victim’s widow and essentially told her not only that her husband was dead, but that it was his own fault. Talk about adding insult to injury.
Here in Central New York, car accident lawyers like me see this problem time and time again. I personally have questioned police officers about why they take the “story” of the surviving driver at face value and recount it in their official motor vehicle accident report as if it were the gospel truth. Their response is that, unless there is physical evidence contradicting the only witness’s version of events, they are required to accept it and put it into their report.
But I bear good news for car accident victims and their families: The police officer might have a duty to accept the only “story” available, but our courts do not. Quite the opposite. They have a duty, upon objection by the plaintiff’s lawyer, to bar the officer’s conclusions from coming into evidence.
That’s right; the police officer’s conclusions do NOT come into evidence.
Many novice New York car accident lawyers don’t know this rule, so let me repeat it: You can keep the police officer’s conclusions about how the accident happened – or whose fault it was — out of evidence. You can have the police report redacted to remove the “story” about how the accident happened, and you can prevent the officer from testifying regarding his conclusions at trial.
In fact, the police officer can testify only about what he actually saw and observed at the scene. Information in a police accident report is admissible as a business record only so long as the report is based upon the officer’s personal observations and while carrying out police duties. See, Memenza v. Cole, 131 A.D.3d 1020, 1021, 16 N.Y.S.3d 287; see Matter of Chu Man Woo v. Qiong Yun Xi, 106 A.D.3d 818, 819, 964 N.Y.S.2d 647; Yeargans v. Yeargans, 24 A.D.2d 280, 282, 265 N.Y.S.2d 562). Conversely, information in a police accident report, or testimony from an officer, is inadmissible where it came from witnesses not engaged in the police business in the course of which the memorandum was made (and the information does not qualify under some other hearsay exception). See Matter of Chu Man Woo v. Qiong Yun Xi, 106 A.D.3d at 819, 964 N.Y.S.2d 647; Holliday v. Hudson Armored Car & Courier Serv., 301 A.D.2d 392, 396, 753 N.Y.S.2d 470.
On the other hand, the surviving and conscious motorist’s version of events can get into evidence through that driver himself, if he claims to have actually seen what happened. That’s because, unlike the police officer, he is an eye witness (though a very biased one). But there is a difference between the jury hearing the “story” from an obviously biased defendant and hearing it from a New York police officer who will be seen as unbiased and particularly trained in investigating car accidents.
Fellow New York personal injury lawyers: Don’t let the police officer parrot the defendant’s version of events. Don’t let the police officer testify about his “conclusions” regarding what happened. Allow him to testify only about what he saw or observed at the scene. Protect your injured client or the family of the deceased victim. Do your job!
Email me at: firstname.lastname@example.org I’d love to hear from you!
Syracuse NY Car Accident Injury Lawyers
Michaels Bersani Kalabanka