By guest writer Arthur Miller, NYC NMA Member, traffic attorney, and co-owner of the New York Truck Stop website and podcast.
The foundation of road safety for all users, motor vehicles, and pedestrians alike, is order and predictability. One of the most dangerous scenarios for a driver lawfully proceeding under power is when someone jaywalks in front of them. Jaywalking means that a person crosses in the middle of the street instead of at an intersection, or in a marked crosswalk, or against the traffic signals.
This week, Bloomberg City Lab posted an article co-written by Angie Schmitt, former Streetsblog USA editor and a self-described expert on pedestrian safety, and Charles Brown, a researcher and adjunct professor at Rutgers University. The title of their opinion piece: 9 Reasons to Eliminate Jaywalking Laws Now or Jaywalking Laws don’t Make Streets Safer.
Using Orwellian doublespeak and fuzzy logic, the writers claim that jaywalking rules really don’t protect pedestrians, are racially biased, and that there are better ways to protect the public. But will eliminating jaywalking rules really help anyone?
The very first traffic rules, issued in 1903, dealt with the issue of who has the right-of-way on a city street:
“The roadbeds of highways and streets are primarily intended for vehicles, but pedestrians have the right to cross them in safety, and drivers… must exercise all possible care not to injure pedestrians.… By crossing a street as nearly as possible at right angles, preferably at a regular crossing…pedestrians will greatly add to their own safety, facilitate the movement of traffic, and make it much less difficult for the horses, which often have to be reined in suddenly and painfully to avoid careless and unthinking pedestrians… “
The writer of those rules, the so-called father of traffic regulations, William Phelps Eno, realized that to rein in street chaos and promote safety:
- We must have concise, simple, and just rules, easily understood, obeyed, and enforced under legal enactment.
- These rules must be so placed and circulated that there can be no excuse for not knowing them.
- The police must be empowered and ordered to enforce them, and men should be trained for that purpose.
Safety is best maintained when everyone knows the rules and that police are empowered to enforce them.
Most of us jaywalk, simply because we can. Our time is precious. We think we can cut through traffic safely. We think the car will stop for us. We believe the rhetoric of safety “advocates” that we have the right-of-way. But as the most vulnerable of road users, we cannot always assume that the operator of a heavy piece of machinery will see us or be able to stop in time. And the operators of motor vehicles should have a reasonable expectation that vulnerable road users like pedestrians and cyclists will follow established norms of behavior.
Why Eliminate the Rule against Jaywalking and Who Benefits from it?
The question remains—who has the right-of-way on a city street? If there is no rule against jaywalking, will pedestrians cross the street at will wherever they want along the street?
Researchers already know that jaywalking will be detrimental for future driverless cars, but what about motorists now?
One of the basic tenets of Vision Zero is that in a vehicular accident involving a pedestrian or bicyclist, the driver is always responsible. (In fact, many VZ supporters want the word “accident” stricken from traffic safety vernacular, replacing it with “road or traffic violence.”) While drivers have the primary responsibility to avoid injuring pedestrians and cyclists, VZ fails when it leaves vulnerable road users with the impression that rules do not apply to them and that they have no responsibility for their own safety.
The NMA contends that every road user has a responsibility for their own actions that impact their safety and others around them. If tragedy strikes, it is crucial that investigators determine who was at fault. There are times when it is the driver, but there is a growing sentiment to make that the default determination.
Recently, a New York City councilmember brought forth a new bill to decriminalize jaywalking. If this passes, other cities will likely follow suit. If you drive at all, you know that jaywalking is prevalent everywhere, but no longer making it a technical violation gives pedestrians the freedom to do what they want.
At the time, the New York Daily News wrote an article about this proposed law, and I was so incensed by the idea that I wrote this letter-to-the-editor.
‘It’s abundantly clear, from the article ‘Queens Councilman’s Bill Would Decriminalize Jaywalking in NYC‘ (September 16) that transportation policy in this town is dictated by the personal injury lawyers and tech-investing venture capitalists. They shamelessly use safety and race as emotional selling points to maximize their court wins and get people to give up their cars and use app-based services instead. Jaywalking is not a crime. There are no criminal repercussions. It’s an offense like any other traffic violation and countless other rules, like having a dirty license plate or drinking in public, any of which are grounds for a police stop. Don’t want cops to stop jaywalkers? Then tell City Hall. Most pedestrian injuries involve jaywalking or crossing against the light. Other factors like pedestrian impairment by alcohol, drugs, and cell phone distraction are hardly measured. Go ahead. Make our streets less safe by telling pedestrians they’re not even partly responsible for their own safety. The personal injury lawyers will get them or their estates more money.”
They Don’t Care about Safety
Rules of the road are needed for safety. People must know their rights and responsibilities. The NYC proposal would change the law to read that pedestrians are simply “advised” to cross in the crosswalk at the green and not mid-street instead of “shall” do so.
Since the COVID-19 crisis began, here in NYC, at least, the local and state governments are cutting the amount spent on public safety education…and they were not spending very much before. The highly touted school zone speed camera program puts millions into NYC’s general funds, but none of that is dedicated to promoting traffic safety. If drivers are required to be educated on rules of the road, why not educate pedestrians and other road users on road safety rules and how they can help assure their own safety.
Drivers certainly have the primary responsibility for roadway safety and avoidance of pedestrians and cyclists. But VZ proponents do a great disservice to public safety when they give vulnerable road users the idea that they have no responsibility for their own safety.
Use of the Race Card is Disingenuous
I agree that jaywalking should not be a basis for a stop and frisk by the police, but that’s an entirely different issue. Don’t allow officers to use simple offenses like jaywalking as a basis for stopping people. The Daily News article stated that the police issued 397 jaywalking tickets in 2019, and 89 percent went to Black and Hispanic pedestrians. But police can lawfully use the violation of ANY offense in NY to stop a person of interest… from jaywalking to drinking in public.
Did you know, though, that in the first eight months of 2020, NYC police officers issued 3,200 tickets for an “obstructed/dirty license plate?” Want to talk about police stops for spurious reasons—can’t imagine anyone getting hurt because a driver had a dirty or obscured plate. How many of those stops were really because the driver was Black or Hispanic?
Racial profiling is a huge issue and needs to be solved through reform efforts. However, changing jaywalking rules have nothing to do with race and everything to do with traffic safety.
Changing the Jaywalking Law Benefits Personal Injury Lawyers.
Comparative negligence is the issue, which means that in a civil action for damages, the degree of personal responsibility of the plaintiff is a factor in the awarding of damages. The standards vary among states. In New York, personal injury lawyers have great sway— a person can be 90 percent at fault and sue the other party for 10 percent responsibility. In New Jersey, though, if a plaintiff is more than 50 percent responsible, they collect nothing.
Here’s a site that lists the standards for state negligence laws if you’re interested in learning more about your state’s information.
During a personal injury trial for injuries to a pedestrian, in a comparative negligence state like NY, a judge instructs the jury about the jaywalking rule. In the jury’s assessment of the parties’ rights and responsibilities in awarding a decision, the law must be considered. If jaywalking is no longer a rule, the judge cannot advise the jury that the pedestrian’s actions or even the pedestrian’s responsibilities are to be considered in an award. If you kill the rule against jaywalking, personal injury lawyers have it made…And all our auto insurance rates go up, too!
The App Sellers and Telecom Providers are the Big Beneficiaries
Distracted driving, along with distracted walking and biking, are huge problems that few researchers adequately measure. Data are rarely collected from pedestrians or cyclists about their distractions. I’ve had cops tell me about grizzly pedestrian deaths where the pedestrian still had earbuds in place.
But Big Tech and Telecomm providers want to sell you more apps and other distractions—it’s their business model. We even see car commercials touting all the app-based distractions (“It’s an Alexa, not a Buick,” says one TV ad). The app and telecom industry must take more responsibility.
Jaywalking and cyclist deaths were plummeting for years until about 2009, according to this 2018 Governor’s Highway Safety Association Report. Anti-car and Big Bike advocates claim that the rise in fatalities coincided with the rise in SUVs and pickups. But the rise also coincided with the debut of the iPhone, which came out in the summer of 2007— go figure.
A takeaway from the GHSA report cited above is that most pedestrian deaths involve jaywalking. A sizeable number of these tragic accidents involve pedestrians walking at night under the influence of alcohol or drugs. Clearly, rules and public education would do more for safety than telling pedestrians that rules do not apply to them.”
Editor’s Note: For more about the reality of pedestrian fatality statistics, check out Problem Solving Ain’t What It Used to Be (NMA E-Newsletter #496)