Rise in Pedestrian Fatalities Presents New Subrogation Opportunities

October 21, 2022 by Gary Wickert

A new analysis of pedestrian safety by the Governors Highway Safety Association (GHSA) reveals that pedestrian fatalities are sharply on the rise. In fact, the report reveals the astonishing news that an average of nearly twenty-two (22) pedestrians per day were struck and killed by automobiles in the U.S. in 2020 and that number is on the rise. This number doesn’t include thousands of non-fatality accidents resulting in serious injury.

In New York City alone, in 2018, there were 277,971 auto accidents. Nearly 6% of those accidents involved a pedestrian and many of those injured or killed were on the job when the accident occurred. According to National Highway Traffic Safety Administration (NHTSA) data for 2020, most pedestrian traffic deaths occurred in urban settings (80%), on the open road (76%) versus intersections (24%), and during dark lighting conditions (76%). The GHSA report also predicts that 2022 will be a 40-year high for pedestrian deaths.

In an effort to address this growing public safety concern, state legislatures are scrambling to pass new laws which regulate and define who is at fault when a pedestrian is struck. These laws cover circumstances when a vehicle must stop or yield to a pedestrian crossing the street at an uncontrolled crosswalk—one where there is no traffic control device governing and/or directing when it is safe to cross the street. For example, a growing number of states require motorists to stop and yield to pedestrians in an uncontrolled crosswalk; an obligation many motorists have had a hard time adjusting to. In Minnesota, the law now requires a vehicle to stop when a pedestrian is in any portion of the roadway—controlled or uncontrolled. Drivers in that state must now stop for crossing pedestrians at marked crosswalks and at all intersections without crosswalks or stop lights. Although Minnesota pedestrians must not enter a crosswalk if a vehicle is approaching and it is impossible for the driver to stop, there is no defined distance that a pedestrian must abide by before entering the crosswalk. Furthermore, when a vehicle is stopped at a Minnesota intersection to allow pedestrians to cross the roadway, it is illegal for drivers of other vehicles approaching from the rear to pass the stopped vehicle.

Interestingly, at common law, the rights of pedestrians and motorists at crossings were equal and neither had a superior right over the other. Bartlett v. Melzo, 88 N.W.2d 518 (Mich. 1958). Today, however, most states treat pedestrian rights and vehicle obligations at controlled and uncontrolled crosswalks differently. Controlled crosswalks are typically striped and delineated, as such a crosswalk could be marked or unmarked. The language and definitions differ from state to state. In general, vehicles must yield the right-of-way to pedestrians at plainly marked crosswalks and at intersections where stop signs or flashing red signals are in place. On the other hand, pedestrians must generally yield the right-of-way to vehicles when crossing outside of a marked crosswalk or an unmarked crosswalk at an intersection. The laws do vary from state to state, however.

In New Jersey, vehicles must stop for a pedestrian within a marked crosswalk but must only yield the right-of-way to pedestrians crossing within any unmarked crosswalk at an intersection. Nineteen states put the burden on vehicles to stop and yield if a pedestrian is located anywhere in the roadway. Other states, like Louisiana, require a vehicle to yield only if the pedestrian is on their half of the road, but not if they are on the other half; requiring the pedestrian to stop and wait as traffic passes. Nebraska requires yielding if the pedestrian is on the same half of the roadway or within one lane of the vehicle. Massachusetts is an example of a state that requires the vehicle to stop and yield if the pedestrian is on the same half of the roadway or within ten (10) feet of the motorist. Despite this, some states—including Hawaii, Georgia, Oregon, South Dakota, Virginia, and Washington treat controlled and uncontrolled crosswalks the same.

In general, drivers of motor vehicles must exercise reasonable care to avoid striking a pedestrian. The laws of many states impose a higher duty of care when it comes to pedestrians who are children. At the same time, a pedestrian cannot blindly walk into the roadway without exercising reasonable care and keeping a proper lookout. A pedestrian who fails to do this is guilty of contributory negligence.

A legal culture sea transformation is underway and claims and subrogation professionals must be aware of this change. The University of Minnesota recently conducted research at “high-risk” intersections in St. Paul as part of a study to track pedestrian and driver behavior. Only 31% of drivers yielded to the pedestrians as required by Minnesota law. Minnesota refers to it as the “Stop for Me” campaign—a public campaign to protect pedestrians and educate drivers that they must stop and let pedestrians cross, even when there isn’t a red light. From 2013 to 2017, 835 pedestrians in St. Paul were struck by vehicles. Of those, 17 died and 747 were injured. Of those hurt, 87 were children 10 years of age and under, and 100 were ages 11 to 17. In Minnesota, pedestrians are allowed to cross the street wherever they choose, so long as they (1) act reasonably to ensure their own safety, (2) follow traffic laws and rules, and (3) are not otherwise prohibited from crossing in a specific location. Minn. Stat. §§ 169 (Minnesota Statutes “Traffic Regulations” chapter). When crossing at a marked crosswalk where traffic control signals are present, pedestrians must obey the signals and may only cross the road within the marked crosswalk. Minn. Stat. § 169.21, subd. 1, 3(c). If crossing at a marked crosswalk or at an intersection without a marked crosswalk where no traffic control signals are present, both motor vehicle drivers and bicyclists must allow pedestrians already crossing the road to cross the entire road first before driving further through the intersection. Minn. Stat. § 169.21, subd. 2(a). Similarly, pedestrians must allow traffic in the roadway to pass before attempting to cross at locations without traffic signals, such as at crosswalks, intersections, and undesignated locations like the middle of the street where there is no crosswalk. Minn. Stat. § 169.21, subd. 2(a), 3(a).

Complicating matters even more are some of the more complex traffic control signs and devices which assist pedestrians in crossing the street. Pedestrians in many states are considered to be lawfully crossing the road within an intersection or crosswalk with traffic control signals when doing so according to a defined set of rules. In Minnesota, these rules are as follows according to the Public Health Law Center:

Where there is only one set of lights applicable to all traffic, the following rules apply:
- Green Signal:
  - Pedestrians facing any green signal (except when the only green signal is a turn arrow) may proceed across the road within any marked or unmarked crosswalk.
  - Every driver of a vehicle must allow pedestrians to cross the road first — except, pedestrians must allow vehicles lawfully within the intersection at the time that the green signal indication is first shown to proceed before crossing.
  - Steady Walk signal or the symbol of a walking person:
    - A pedestrian facing either of these signals may proceed across the road in the direction of the signal, possibly in conflict with turning vehicles.
    - Every driver of a vehicle must allow pedestrians to cross before driving further — except that the pedestrian must let vehicles that are lawfully within the intersection at the time that the signal indication is first shown to pass first.
    - A pedestrian is prohibited from starting to cross the road in the direction of either signal.
    - BUT — Any pedestrian who has partially crossed on the Walk or walking person signal must proceed to a sidewalk or safety island while the signal is showing.
    Closely related to the laws regarding pedestrians and street crossing is the growing body of laws which regulate what a pedestrian can and can’t do while crossing a street. These laws are referred to as “Distracted Walking Laws”, but more creative names such as “Phones Down, Heads Up Act” have been used. The use of headphones, smartphones, or other electronic devices while crossing the road has contributed to pedestrian/vehicle accidents, injuries, and deaths. A growing number of municipalities across the country have criminalized the ordinary act of walking by making it illegal to walk across the street while using smartphones or wearing earphones. This movement is sweeping the nation the same way the campaign against drunk and distracted driving proliferated. Cities, towns, and villages across America are passing ordinances making it illegal to cross the street while involved in a phone call, viewing a mobile electronic device, or with both ears obstructed by personal audio equipment. While public safety is certainly a concern across the country, some of these laws border on the absurd—both in terms of enforceability and failure to reflect the realities of everyday life. A 2017 Honolulu ordinance makes it illegal to cross the street and even “look” at a cellphone, an innocent act no more distracting than looking at one’s watch and quite normal for those who rely on smartphones in place of a wristwatch.
    Some people have suggested legislation making use of a device called a “textalyzer”, under development by a firm in Israel, that can scan a driver’s phone for activity like texting, Facebooking, and Snapchatting in the moments leading up to a collision. One such bill in New York proposed that anyone who refused to hand over their phone would surrender their license, much like refusal to submit to a breath test is grounds for a license suspension.
    Critics of the growing number of distracted walking laws claim that these laws do not target the real public safety threat. They argue that people slow down their walking when they’re looking at electronic devices, enabling them to avoid obstacles and not walk into trouble inadvertently. They claim that you can’t legislate common sense. A report from the Office of Ontario’s Chief Coroner revealed that a mere 7 out of 95 pedestrians killed in 2010 were distracted by a cell phone or handheld device—roughly 7%. They argue that jaywalking is already against the law, so if someone crosses an active roadway illegally, notwithstanding the use of a handheld device, there’s already a law for that. Besides, they say, many pedestrian laws allow the pedestrian to rely on the fact that a vehicle will not violate the law and strike them when they have the right-of-way. What’s more, in only 23% of collisions with pedestrians was the driver found to be driving properly. They argue that the most serious cause of pedestrian accidents is driver inattention or reckless driving.
    Complicating the pedestrian mosaic further is the fact many states and municipalities have enacted laws and ordinances with the objective of protecting pedestrians who are blind or visually impaired. When a pedestrian is yielding a white cane, an entire new body of laws and duties enter the picture. Each state handles the situation differently, with some states requiring that the driver yield to a white cane, some requiring that the driver come to a complete stop, some requiring only caution be used by the driver, and still others providing for no extra rights and protections to the visually impaired. Obviously, as with distracted walking laws and ordinances, white cane laws are also part of the legal mosaic which is created when there is a pedestrian injury. A chart detailing the white cane laws for each state can be found HERE.
    The Americans with Disabilities Act (ADA) became law in 1990. 42 U.S.C.A. §§ 12101 to 12213; P.L. 101-336, Table 2, Statutes at Large, U.S.C.A., P.L. 101-336. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. One might wonder what this massive federal law has to do with crosswalks, but it has begun to play a role because today’s crosswalks are often constructed by municipalities with ramps and other features accommodating to Americans with disabilities. Under Project Civic Access (PCA), the U.S. Civil Rights Division works with local governments nationwide to help them achieve compliance with Title II of the ADA and Section 504 of the Rehabilitation Act of 1973. The ADA has many requirements for curb ramps at pedestrian crossings that are currently enforced by the Division under PCA. The guidelines promulgated cover pedestrian access to sidewalks and streets, including crosswalks, curb ramps, street furnishings, pedestrian signals, parking, and other parts of the public right-of-way. Another source of information about the federal accessibility requirements for public rights-of-way is the Federal Highway Administration (FHWA) of the U.S. Department of Transportation. Following ADA, the U.S. Access Board has developed specific accessibility guidelines, known as the Americans with Disabilities Act Accessibility Guidelines (ADAAG), for the design of certain pedestrian facilities.
    In order to help recognize true subrogation potential when a pedestrian injury or death is involved, MWL has created a chart representing an amalgamation of laws from all 50 states addressing the relationship between and the duties of motor vehicles and pedestrians crossing the street. That chart may be viewed HERE. It should be remembered that individual cities and villages may also have ordinances which affect the duties and liabilities of drivers and pedestrians. Claims adjusters and subrogation professionals should not automatically assume that a pedestrian is at fault merely because he or she was struck while crossing the road. Society is changing and the burden and duty to avoid a collision is rapidly shifting to the driver of the motor vehicle.
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