COVID-19: The Recovery will Happen in Public Space

Walking is Not a Crime: Questioning the Accident Axiom

David M Nelson
Feb 13, 2013
Dec 14, 2017
Industrial Rd & Millard Ave in Omaha, America's most dangerous intersection, makes no room for pedestrians / Photo: Google
Industrial Rd & Millard Ave in Omaha, America's worst intersection for pedestrians according to Streetsblog / Photo: Google

The Pedestrian Pandemic In 2010, the last year the National Highway Safety Traffic Administration (NHSTA) published such figures, a startling 4,280 pedestrians were hit and killed in traffic and 70,000 were injured. For many states, this past year was one of the most deadly in a decade, ending a general decline in pedestrian fatalities. Even still, there is a disturbing cultural willingness to accept these deaths as a necessary evil. The public increasingly blames the victims. The police rarely prosecute, and if they do, the courts are often lenient. In 2012, 136 pedestrians were killed and another 11,621 were injured in New York City alone—and in all that time, only one sober, unacquainted driver was charged.

The Texas Transportation Institute (TTI) just released their annual Urban Mobility Report resulting in the usual public outcry to spend billions of taxpayer dollars to address congestion, because of what time stuck in traffic costs the American economy.  According to AAA, pedestrian deaths and injuries cost American society $300 billion in 2010, that is nearly three times the national cost of congestion as estimated by the Urban Mobility Report.  Where is the public outcry to improve safety?

In the US, Common Law tradition has a clear provision for the right of access. Given that all forms of transportation begin and end with walking, this is essentially a right to be a pedestrian—a right severely restricted by expensive and counterproductive high-speed roads that we’ve built. A key problem in defending this right is that very few laws motivate law enforcement to consider killing a pedestrian as a crime. Involuntary Vehicular Manslaughter is a potential charge, but it’s hard to prove constructive manslaughter since a little speeding is rarely seen as a crime, and the threshold for recklessness is hard to meet. Anecdotally, drivers who kill a pedestrian are better off waiting for the police to arrive, because hit and runs really are about the only time the police reliably pursue these drivers with any prejudice. New laws specifically dealing with pedestrian-vehicle crashes are needed.

Blaming the Victim In my opinion, our local media outlets are exacerbating the problem. Their stories discount the human loss and reinforce widely held misconceptions. First and foremost, underlying all of the poor media coverage is what I call the “Accident Axiom.” This is the widely-held (but almost never-questioned) belief that accidents are an unavoidable and innocent consequence of modern motorized society. The assumption here is that crashes not involving excessive speed, alcohol, or gross negligence are presumably the fault of no one, but an unfortunate systemic fluke.

This axiom has two corollaries: the Inherent Risk Corollary and the Reckless Driver Corollary. The former states that in this world of unavoidable accidents, pedestrians and cyclists are senselessly putting themselves in harm’s way by traversing concrete and asphalt. If they get hit, it is a deserved consequence of their poor decision making. And the latter states that those rare instances when a driver is at fault, it is the result of that driver being a reckless and careless individual, a deviant member of society. All blame is attributed to the individuals involved. The road network and driving culture are given immunity.

Recently the focus has been on the bad behaviors of pedestrians: texting, wearing earphones, jaywalking, drunk walking, etc. While there is clearly a personal responsibility to remain aware of your environment, we should not rush to judgement. Freakonomics ran a particularly illogical analysis of drunk walking back in 2011, claiming that it was eight-times safer to drive under the influence. Safer for whom?

As the mounting death toll makes the issue of pedestrian safety harder to ignore, the Reckless Driver Corollary has expanded to include distracted driving, a legitimate problem just like drunk driving. But in the age of TV screens, internet radio, and GPS navigation systems in dashboards, can we really claim distracted driving to be the isolated acts of a few negligent operators? Driving at high speeds with all of these modern additions is a pervasive indiscretion, a transgression a plurality of society idly commits on a daily basis.

I’m from Nebraska, one of the “safest” states for pedestrians, though that statistic is largely a function of our rural population and lack of pedestrians in cities.  Even in the Cornhusker State, 2012 was a 250% increase in pedestrian fatalities over 2011 as reported by AAA. The Omaha World Herald, is particularly fond of stating pedestrians “were not in a crosswalk” when they were hit. But this is often not even true! Victims were often not in a marked crosswalk. By law, crosswalks do not have to be marked; in a city where road salt strips the paint every year, few crosswalks even are. In September, when the World Herald reported on the increase in fatalities, I decided that enough was enough, and I responded by challenging the misconceptions so flagrantly repeated in their reporting. It took mere minutes of research to refute their presumptions.

The state’s traffic laws, Chapter 60 of the Nebraska Revised Statutes, lays out that a crosswalk exists whenever sidewalks are present on both sides of an intersection, regardless of whether there are white lines painted or not.  It goes on to explain a pedestrian can step into an unmarked crosswalk even if an approaching car is in view, so long as the driver has time to stop and there isn’t a Don’t Walk signal.  And most importantly if references a case Vanek v. Prohaska that states, "Violation of a statute is not negligence per se, but is merely evidence of negligence."  In other words, just because a pedestrian violated these laws, doesn’t mean they should be considered the party at fault.  Given the inadequacy of the infrastructure, it might have been perfectly reasonable to cross in such a way.  Though the original post has since been deleted, you can read the full text of my comment here.

In the early 1900s, cars and their drivers were depicted in editorials, cartoons and accident reports as reckless murderers / Photo: via Peter Norton

The Rise of Motordom—and the Future of the Message This wasn’t always the media’s modus operandi. In the early 1900s, cars and their drivers were depicted in editorials, cartoons and accident reports as reckless murderers, as grim reapers spreading death across cities and as pagan gods appeased by the sacrificing of children. What changed, mid-century, was that the highway lobby essentially took over the reporting of pedestrian and cyclists harmed by drivers; unsurprisingly, they changed the voice of coverage to presume the innocence of drivers.

Fortunately, there are signs that the narrative might be starting to change. While stories highlighting the injustice inherent in the way we treat pedestrian fatalities are usually the purview of urbanism-friendly publications (think Streetsblog, The Atlantic Cities, et. al.) NPR ran a story last month profiling the impossible task that police face in tracking down hit-and-run drivers involved in vehicle-pedestrian crashes. Brian Williams also covered the topic recently on NBC’s Rock Center, and the segment starts off promisingly enough. Unfortunately, about twenty minutes in, it becomes clear that the story is being framed using the Reckless Driver Corollary, focusing on the fact that drivers involved in the crashes being discussed were on their phones, rather than the fact that pedestrians died.

Solutions There are many things that can be done to keep pushing the message back to a place that values human life first, and speed and efficient movement of automobiles second. On the policy side, get a Vulnerable Users Law introduced into your state legislature. Vulnerable Users Laws shift the burden of evidence onto the more dangerous individual. Drivers are responsible for cyclists, cyclists for pedestrians. I’m a huge fan of these laws, because pedestrians are put on a pedestal. They’ve been popular in Europe and are catching on in the United States.

You can also pursue other policies like Vision Zero, famously applied in Sweden and currently being campaigned for by Transportation Alternatives in NYC. Essentially, Vision Zero is a directive to eliminate all pedestrian and cyclists fatalities in quick order. The central premise being, “that no loss of life is acceptable.” Concerning law and order, you can find local lawyers to represent and advocate for justice on the behalf of pedestrians and cyclists injured or killed by drivers.

You can work to lower the speed of traffic. More specifically, advocate to decrease the range of speeds driven over a segment of road.  A fundamental belief in traffic engineering is that differences in operating speed causes higher risks of crashes. Spread can be reduced by lowering speed limits and using roundabouts instead of signalized intersections. The end result is travel times remain the same but maximum operating speed and the range of speeds are significantly lowered. Other geometric changes include narrower lanes, pedestrian refuge islands, neck-downs and Rightsizing.

However, only so much will be accomplished until our local papers and the nightly news starts putting pressure on state DOTs and public works departments to keep our citizens safe on foot. So, first and foremost, pay closer attention to the way that pedestrian deaths are portrayed by the local media in your area, and don’t be afraid to put pressure your local news outlets when you see improper coverage that blames the victim. It is easy to find language in your State Statutes that debunk published misconceptions about crosswalks and jaywalking. We all have the right to walk—and like most rights, it’s one that must be defended.

Helpful Resources


David M Nelson
David M Nelson
Related Articles & Resources
No items found.
COVID-19: The Recovery will Happen in Public Space