According to the Governors Highway Safety Association (GHSA), each day last year, twenty people were struck and killed by cars. Nearly 8,000 pedestrians were killed by vehicles in 2021 – an increase of 11.5%. This represents both an alarming public safety trend and a growing concern for the insurance industry.
A 2018 Governors Highway Safety Association (GHSA) study found HERE has revealed that smartphone use, alcohol, and marijuana use has contributed to drastically-increased injuries and deaths to pedestrians. Every year approximately 76,000 pedestrians suffer injuries when they are struck by a moving vehicle. Beginning in 2016, America experienced a significant increase in the number of pedestrian fatalities, and in 2017 alone, there were nearly 6,000 pedestrian deaths in the U.S. Five states alone account for 43% of all pedestrian deaths—California, Florida, Texas, New York, and Arizona. The reported number of smartphones in active use in the U.S. rose 236% from 2010 to 2016, said the report, which cited an increase in “cell phone-related” emergency room visits. While this might instinctively bring to mind a distracted pedestrian crossing the road without keeping a proper lookout, the rise in these pedestrian accidents is also caused in large part by distracted drivers. The report also noted that there was a 16.4% increase in pedestrian fatalities in the seven states that legalized recreational marijuana use between 2012 and 2016. Children and the elderly are particularly vulnerable.
Pedestrian deaths now make up 16% of the total traffic deaths in the U.S. A 2018 National Transportation Safety Board (NTSB) study found HERE reveals that in 2016, 5,987 pedestrians were killed on U.S. roads—an average of 16 per day. The worst states were New Mexico, Florida, South Carolina, Delaware, Arizona, Nevada, Louisiana, Texas, Alabama, and Georgia. Interestingly, nine of the ten worst states are located in the South. It is impossible to effectively handle personal injury and workers’ compensation subrogation claims without becoming familiar with the mosaic of proliferating laws which govern the liability of motorists and the duties of pedestrians when crossing the street.
Children under 13 years of age have the lowest pedestrian death rate of all ages — 4 per million. Elderly pedestrians, although struck even less frequently than children, are more likely to die after being struck. Victims over the age of 70 account for 13% percent of pedestrian deaths. Male pedestrians of all age groups are more commonly killed in collisions than female pedestrians. According to the Insurance Institute for Highway Safety, “Pedestrian deaths increased 54% in urban areas, which include both cities and what most people consider suburbs. They also increased 67% on arterials — busy roads designed mainly to funnel vehicle traffic toward freeways — 50% outside of intersections, and 56% in the dark. Although pedestrian crashes most frequently involved cars, fatal single-vehicle crashes involving SUVs increased 81%, more than other type of vehicle.”
Legislatures Attempt to Address Problem
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 sea change 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).
Distracted Walking Laws
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.
White Cane Laws
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.
Being familiar with the laws applicable to accidents involving pedestrians and crosswalks, it is essential to understand the law. A chart detailing the crosswalk and pedestrian laws of all 50 states can be found HERE. For questions involving pedestrian and crosswalk injury subrogation anywhere in the U.S., contact Lee Wickert in MWL’s Austin, Texas office at [email protected].
Lee R. Wickert is a senior associate attorney in our Austin, Texas branch office. Lee’s practice focuses on insurance litigation, subrogation, workers’ compensation, health insurance and ERISA, automobile insurance, property and casualty, and insurance coverage. Lee is licensed to practice in Texas and Wisconsin.