We have represented many clients who were struck by a motor vehicle, or a bicycle, in a crosswalk. “I had the right of way, didn’t I?” they say. You may have had legal permission to go, but to be safe you still need to look because crosswalks are notorious for motor vehicle pedestrian collisions.
In a unique traffic study undertaken by emergency room doctors at a hospital in New York, it was determined that pedestrians hit by vehicles in a crosswalk more likely than not had permission to cross – the light was in their favor. It’s likely the same, or a similar statistic in Massachusetts.
What about staying on the sidewalk? You still need to be careful and weary of traffic: 6% of pedestrians where injured while on sidewalks according to the study.
Massachusetts General Laws Chapter 89, Section 11 states that the driver of a motor vehicle must yield to a pedestrian in a crosswalk. In addition, it is a violation of the Code of Massachusetts Regulations to fail to exercise due care in an intersection by failing to yield to a pedestrian. See 720 CMR 9.06(19). Nevertheless, we regularly see clients with the right of way who were struck in a crosswalk – vehicle drivers frequently say that they didn’t see the pedestrian, that the pedestrian was wearing dark clothing, or was simply too small or quick when coming from behind a parked vehicle. And the Massachusetts insurance companies will use any fact they have, or from their insured or witnesses they often refuse to identity, to say that the pedestrian was “partly” at fault.
For those who want to review the law, see Massachusetts General Laws, Chapter 85, Section 14 and see Code of Massachusetts Regulations, 134, Appendix A. That Appendix has the whole list of moving violations!
One factor the emergency room doctors noted was that 15% of pedestrians and 11% of bikers were injured while under the influence of alcohol. Of course you are far more likely to hurt yourself or others when driving after consuming alcohol, the physicians demonstrated that walking and biking while under the influence may be casually linked to collisions with motor vehicles.
This statistic should warn folks that alcohol consumption can result in injury anytime, not just when operating vehicles.
Again, Massachusetts insurance adjusters will use this fact, even if you had the right of way, against you. And a jury will too.
Walking While Distracted by Electronics
Another factor causing or contributing to pedestrian and bicycle accidents is the distraction of electronic devices – phones and music players in particular. The figure was that 8% of all pedestrian and bike injuries occurred when the injured party was using an electronic device. When age is factored in, the numbers increase dramatically: injuries to children pedestrians ages 7-17 when using electronics was 10%, and for bicyclists, the figure was 30%!
Cell phone bills are frequently subpoenaed to civil depositions and trials by insurance lawyers to prove that the user was distracted. It’s easier for witnesses to see if a pedestrian was using a cell phone than if a vehicle operator was. They are distracting so don’t walk and text, or surf!
Taxi’s and Pedestrians
In the New York study, taxis accounted for 25% of the injured pedestrians and a full 40% of bikers were hit by taxis. In Massachusetts, with taxis being under insured, under regulated and regularly causing injuries in the cities, we have our own special concerns.
Pedestrians should call Attorney Neil Burns for a free consultation: 617-227-7423.