While recent reports from the Governors Highway Safety Association (GHSA) highlight a slight decline in pedestrian deaths in early 2024, the broader trend of rising pedestrian fatalities over the past decade presents an increasing challenge for subrogation professionals. Determining liability in pedestrian accidents is often complex, as laws governing right-of-way, driver responsibility, and pedestrian duty vary from state to state.
Subrogating pedestrian accidents requires a deep understanding of traffic laws, fault allocation, and emerging legal trends. With pedestrian deaths making up a growing percentage of total traffic fatalities, insurers and claims professionals must navigate a patchwork of laws governing crosswalk usage, pedestrian behavior, and driver obligations.
Legal Framework: Pedestrian Right-of-Way and Motorist Duties
At common law, pedestrians and motorists shared equal rights at crossings. However, modern statutes now differentiate between controlled and uncontrolled crosswalks, creating significant legal variation across jurisdictions. Some states require motorists to stop and yield to pedestrians under all circumstances, while others only require yielding when the pedestrian is in a marked crosswalk.
For example, New Jersey mandates that vehicles come to a full stop for pedestrians in marked crosswalks but only yield in unmarked ones. In contrast, states like Louisiana require drivers to yield only if the pedestrian is on their half of the road. These variations create a complex legal landscape that must be carefully analyzed in subrogation claims.
Three Key Factors Influencing Pedestrian Accident Subrogation
1. Determining Negligence and Comparative Fault
Negligence is at the heart of pedestrian accident subrogation. Many states follow comparative fault rules, where both the driver and pedestrian may share liability. A pedestrian who crosses outside a designated crosswalk while distracted by a smartphone may be found partially at fault, reducing their claim recovery. Conversely, a driver speeding through a pedestrian-heavy area may bear the majority of the blame.
Understanding each state’s negligence framework is crucial. In contributory negligence states, a pedestrian who is even slightly at fault may be barred from recovery. In pure comparative negligence states, fault is apportioned based on the percentage of responsibility assigned to each party.
2. The Role of Distracted Walking and Driving
The rise of smartphone use has led to an increase in pedestrian accidents caused by distracted walking. Some cities have enacted laws penalizing pedestrians for using mobile devices while crossing the street, adding another layer of complexity to subrogation efforts. Similarly, distracted driving remains a significant factor in pedestrian accidents, with many claims hinging on whether the driver was texting, adjusting navigation, or otherwise inattentive.
3. Impact of Vehicle Type and Speed
The size and speed of the vehicle involved in a pedestrian collision greatly influence injury severity and liability considerations. SUVs and trucks pose a higher risk to pedestrians, and insurance carriers may find that vehicle type plays a role in subrogation recoveries. Additionally, speed limits and adherence to traffic control devices can determine fault, particularly in urban areas where pedestrian density is high.
The Future of Pedestrian Accident Subrogation
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 that 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 Yellow Signal: Pedestrians facing a circular yellow signal are notified that there is not enough time to cross the road before a red signal is shown and are prohibited from starting to cross the road.
- Steady Red Signal: Pedestrians facing a steady red signal alone must not enter the road.
- Green Signal:
- Whenever special pedestrian control signals with the words Walk or Don’t Walk or symbols of a walking person or upraised hand are in place, the signals or symbols indicate as follows:
- 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.
- Don’t Walk signal or the symbol of an upraised hand (flashing or steady):
- 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.
- Steady Walk signal or the symbol of a walking person:
Distracted Walking Laws
Closely related to the laws regarding pedestrians and street crossing is the growing body of laws that 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 the “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 2018 Governors Highway Safety Association (GHSA) study found HERE has revealed that smartphone use, alcohol, and marijuana use have contributed to drastically increased injuries and deaths to pedestrians. 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.
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 that 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 that is created when there is a pedestrian injury. A chart detailing the white cane laws for each state can be found HERE.
It should be remembered that individual cities and villages may also have ordinances that 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.
A Pedestrian and Crosswalk Laws In All 50 States chart representing an amalgamation of laws from all 50 states that regulate the relationship between and the duties of motor vehicles and pedestrians crossing the street can be found HERE. For information on subrogating pedestrian or auto accidents in all 50 states, contact Ashton Kirsch at akirsch@mwl-law.com.
