New Jersey is sued for letting unfit, elderly man drive.

In what may be the first U.S. suit of its kind, a pedestrian hit by an elderly driver has sued New Jersey for creating an unreasonably dangerous condition by failing to determine whether the drivers it licenses are fit to operate a motor vehicle. (Corso v. New Jersey, No. MID-L-5419-03 (N.J., Middlesex County Super. Ct. filed July 23, 2003).)

In December 2001, Vincent Corso was in an intersection when Phillip Piracci, 80, drove into him. Piracci did not even know he'd hit someone until police arrived at his house after interviewing witnesses. Corso suffered severe head injuries and was transported from the scene in a coma that continued for several months. He is currently wheelchair-bound and living in a traumatic brain-injury rehabilitation center.

Piracci died in February of natural causes, but Corso is suing his estate, as well as the state, for damages.

"The theory against the state is that New Jersey issues licenses when drivers are 17 years old, and continues to renew them without ever checking to see whether the person is physically and mentally able to operate a car safely," said Robert Linder of Englewood, who is representing Corso with Stuart Lieberman of Princeton.

"So long as you pay the renewal fee, every four years you automatically get a new license. If the state engages in this activity, a certain percentage of those [who get their] licenses renewed aren't going to be able to operate a vehicle safely. The state is creating a dangerous condition on the roads and should be held responsible for it."

Piracci's license was renewed "without any safeguard, any test, any mechanism in place to determine whether [he] had the physical, mental, or emotional wherewithal to safely operate a motor vehicle on New Jersey roadways," according to the suit. New Jersey law requires all drivers to pass a vision test every 10 years.

Linder noted that the claim is not focused on elderly drivers. "The idea of renewing licenses without paying any regard to one's ability to drive is a recipe for disaster," he said. "Everyone should be tested." But it is up to the state to determine the appropriate age to retest drivers and the proper time interval between renewals. "That's not something we're going to be addressing."

But after similar tragedies in July--in California--where 86-yeai-old Russ Weller reportedly confused the gas and brake pedals and plowed into a Santa Monica farmer's market, killing 10 and injuring dozens; and in Florida, where 79-year-old polio victim Louis Nirenstein lost control of his car and injured three people at a farmer's market in Flagler Beach--many people are asking whether states compromise public safety by failing to test senior citizens' ability to drive.

According to Federal Highway Administration data, fatalities among drivers 70 of older rose 27 percent between 1991 and 2001. The National Highway Traffic Safety Administration (NHTSA) says nearly 25 million people age 70 and older live in the United States, and almost 14 percent of all traffic fatalities occur among that population. And according to the American Medical Association (AMA), the fatality rate for drivers 85 and older is nine times higher than that for drivers age 25 to 69. Both NHTSA and the AMA say the increasing number of elderly drivers is a public health issue.

State solutions

But will change come via legislation, support and education efforts by senior-citizen advocacy groups, or litigation?

Some states have laws to help ensure that drivers operate their vehicles safely. Provisions vary. Some impose driving restrictions; others require in-person and more frequent renewals, vision testing upon renewal, and driving tests.

For example, several states--including Alaska, Arizona, California, Colorado, and Louisiana--have set age limits for mail renewals; Maine and Oregon require vision screening for drivers over 40 and 50, respectively; and Illinois and Maine require drivers over 74 to take a road test. In addition, at least 36 states have passed laws requiring insurance discounts for older drivers who take a reeducation course, such as the "55-Alive" program offered by AARP.

However, last year, proposed legislation in Hawaii and Mississippi to require vision testing for drivers over age 69 failed to pass, and legislators may be taking a step back after public outcry that such laws constitute age discrimination.

Some senior-citizen advocacy groups argue that good driving depends on ability, not age, and say that to revoke a license or require testing just because someone has reached retirement age is discriminatory. Without cars to travel to the post office, doctor appointments, church, and grocery stores, senior citizens' "lifestyle independence" can be destroyed.

These advocates say that when seniors can no longer drive safely, they need available alternative transportation and adequate community contact so they do not feel isolated. Children who must tell elderly parents they can no longer drive should enlist the support of an authority figure, such As a parent's doctor.

NHTSA reports research and information pertaining to older drivers on its Web site. According to the agency, "there is a need to help aging individuals recognize their changing abilities and adapt their driving practices appropriately, as well as a necessity to identify, assess, and regulate older drivers with diminishing abilities who cannot or will not voluntarily adapt their driving habits."

The agency urges doctors, family members, and friends to identify unsafe elderly drivers to departments of motor vehicles, which could test their vision and driving skills. The agency recommends "functional screening" along with education and counseling and alternative transportation resources "to preserve--instead of penalizing--the independent mobility of affected drivers."

Currently, only 13 states have laws requiring doctors to report patients who are medically unfit to drive, but the AMA, with NHTSA, has developed an Internet guide to help doctors decide whether elderly patients can still get behind the wheel. It discusses how to counsel the patient who can no longer drive safely and outlines physicians' legal and ethical responsibilities, state licensing requirements and reporting laws, and medical conditions and medications that may impair driving.

While agencies and organizations struggle with rule-making, the outcome of Vincent Corso's suit may provide a wake-up call.

"I am not a legislator; I am an attorney," said Linder. "But something should be done to make sure that people who are issued a license or a renewed license have the capability to safely drive a car--for their own safety as well as the general public's."