Understanding Pedestrian Accident Liability in NYC

Pedestrian fatalities comprise approximately 30% of all of the motor vehicle-related fatalities in New York State.[1]  Pedestrian zones are a great way to reduce the threat of traffic to pedestrians in urban environments, but they aren’t a universal option.[2]  New York—long understood to be one of the only walkable cities in the United States—has densely populated sidewalks, and traffic fatalities crept upwards in 2024, the first time in five years.[3]  Experts such as Sarah Kaufman—director of the Rudin Center for Transportation at New York University—have said that the city has made as much progress as it can without major renovations of public space.[4]

The available statistics and literature do not reveal any patterns in the impact of the season or time of year on pedestrian accidents in New York City.  However, it is thought that there is a rise in pedestrian accidents during the fall and winter months due to factors such as reduced daylight hours, adverse weather conditions, and decreased visibility for motorists.  Studies from other regions seem to corroborate the idea that there are more pedestrian accidents in the winter than other times of year.[5]

Given the seasonal impact, it is critical that injured people understand at least some of the nuances of New York City’s legal landscape as it applies to pedestrian accidents.  But it is unreasonable to expect them to know the answers to all of it.

If you are looking for answers in the wake of a pedestrian accident then call the pedestrian accident lawyers at Dansker & Aspromonte.  Our attorneys work on a contingency fee, which means that your initial consultation is free, and you only pay us if the insurance company pays you.  Reach out to us today by calling us at (516) 206-6723 or by contacting us at our online portal, which is linked here.

Legal Framework for Pedestrian Accidents

The Law of Negligence in New York

Negligence Claims Generally

A negligence claim is a common law tort action that has existed for hundreds of years. To succeed, a plaintiff—i.e., the person filing a lawsuit against the defendant to recover for injuries—must prove the following:

• • The defendant owed the plaintiff a duty.[6] This duty, commonly referred to as the “duty of reasonable care,” requires defendants to act as a reasonable and prudent person would when their actions might foreseeably pose a risk of injury to another person.
  • The defendant breached that duty. The defendant failed to act in the way a reasonable and prudent person would have under similar circumstances.
  • The plaintiff was injured. Usually straightforward, established through medical evidence or testimony.
  • The defendant’s breach of duty caused the plaintiff’s injury. Causation must satisfy two components:
    1. But-for causation: But for the defendant’s breach, the plaintiff would not have been injured.
    2. Proximate causation (foreseeability): The plaintiff’s injuries were a foreseeable consequence of the defendant’s breach.

Negligence per se

Negligence per se is much like an ordinary negligence claim with two slight differences.  First, negligence per se claims are concerned with the duties imposed on defendants by New York state statute.[7]  Such a duty could be a duty not to text and drive, the duty not to operate a motor vehicle while intoxicated, or the duty to stop at red lights.

Second, a negligence per se claim does not ask if the defendant breached a general duty of reasonable care.[8]  Rather, these claims substitute the defendant’s violation of a state statute for the general duty of reasonable care.  If the defendant violated a state statute then he breached the duty of reasonable care.

Comparative Negligence in New York

New York has adopted a system of “comparative negligence.”[9]  In a system of comparative negligence, a successful personal injury lawsuit’s damages will be reduced proportionately to the amount of fault that the jury assigns to the injured person.

For example, assume that a driver hits a young man who was jaywalking.  At trial, the jury finds the driver liable for the young man’s injuries; the driver was negligent.  But what about the Jaywalking young man?  Wasn’t he also negligent?  Yes, that young man was jaywalking, which would be considered negligence per se under New York law.  Because the young man was jaywalking, the jury could assign some percent of the fault for his injuries to him, and his damages would be reduced commensurately with that assigned fault.

Factors Influencing Liability in NYC

A defendant’s liability in a negligence action as well as the plaintiff’s comparative negligence are influenced by a huge number of factors.  Remember: a negligence action examines whether or not the defendant acted as a reasonable and prudent person would have acted under the same or similar circumstances.  With that in mind, the following are some circumstances which could impact the liability imposed on the defendant for the plaintiff-pedestrian’s injury:

• Extremely crowded sidewalks can have the effect of reducing a pedestrian’s ability to avoid oncoming traffic if there is simply not enough room on the sidewalk. By the same measure, a defendant may argue that he could not have avoided hitting the pedestrian because the pedestrian was in the road as the driver was driving.
• Traffic signal malfunctions can reduce the defendant’s culpability in these cases because the defendant can credibly say the he followed the traffic signal to the extent he was able to do so.
• Crosswalk violations on the part of a pedestrian can impact the pedestrian’s recovery, for the pedestrian could be found negligent to walk into the crosswalk at an inappropriate time and to have caused the accident.
• A driver who runs a red light does not just face a ticket if he hits a pedestrian. Striking a pedestrian with an automobile as a result of running a red light tends to be a very strong negligence case.
• The duty of reasonable care as applied to construction zones and temporary walkways would dictate that a defendant should slow down when he or she encounters a construction zone or a temporary walkway, and the failure to do so is a breach of that duty.
• Motorists are obliged to yield to pedestrians in crosswalks, to observe reduced speed limits in densely populated areas, and to use due care in poor visibility conditions.[10] If a motorist fails to perform any of these obligations—all of which are mandated by New York statutes—then the defendant could be liable under a theory of negligence per se.
• Finally, a motorist could be found negligent if he or she fails to drive with headlights on in the rain or fog or for driving too fast when the conditions are wet and slippery.

Proving Liability in Pedestrian Accidents

It is simple to discuss hypothetical situations in which a person could be found liable under a theory of negligence in a vacuum, but in practice, proving that a driver is liable for an accident requires evidence, persistence, and a lot of time and effort on the part of the plaintiff and his or her lawyer.

The first step towards proving the defendant’s liability is evidence collection, and it starts at the scene.  It may seem intuitive that the evidence collection process would begin once an attorney has been hired, but actually, successful pedestrian accident claims start in the moment of the accident.  To the extent possible, safely collect contact information and statements from witnesses at the accident scene.  Try to take photos of the car and the scene as it was at the moment of the accident.

Further, call the police after the accident, and remain at the scene until they arrive.  Request a copy of the police report, and, if that’s not possible, ask for the case number.  Your attorney will typically be able to obtain any police reports related to your accident from the NYPD.

But why does this report matter? The NYPD responds to pedestrian accidents and will create a report about what happened that should be a highly accurate recollection of the events.  This police report should also contain information about the witnesses, the driver, whether the driver was insured, and other critical details.  In some instances, the NYPD may have access to video footage of the incident from traffic cameras or other private surveillance cameras.  The NYPD may also employ an accident reconstructionist to recreate the scene and state what he or she believed to have happened.

Finally, your attorney will begin the process of interviewing and hiring experts if they are necessary in your case.  It should be said that the use of expert witnesses is a strategic choice in any pedestrian accident case that is to be made by the attorney, and not every case requires such an expert.  If one is needed then your attorney will begin interviewing them and prepare them to provide expert testimony at trial to prove your case.

Compensation: What You’re Owed and Who Owes It To You

Damages Available to Injured Pedestrians

In New York, the state allows injured people to recover the “damages” that necessarily, usually, and immediately flow from an injury caused by another person’s negligence.[11]  New York law authorizes damage awards for the following:

1. Pain & Suffering: These are damages awarded for the physical sensation of pain and emotional anguish that the injured person experienced as a result of his or her injury.[12]
2. Medical Expenses: Given that the entire point of damages is to make the injured person whole, it makes sense that they can recover compensation for their medical bills.[13]
3. Lost Wages: Pedestrians who are injured in an accident are entitled to recover compensation for the wages they lost as a result of their inability to work due to their injury.

Who Pays? The Insurance Claims Process

The insurance claims process is, for many injured people, one of the most intensely frustrating aspects of the litigation process.  Insurance companies do not care about injured people; they care about saving money.  And the way insurance companies save money is by denying or lowballing injury claims.

You should always consider hiring a lawyer if you are injured and seeking compensation.  Insurance companies respect a realistic threat of litigation, but they are often persuaded to negotiate in good faith when they see that threat.  People who hire an attorney will, on average, settle their cases for almost 3.5 times as much money as those who do not.[14]

Settlement Negotiations vs. Litigation

It is important to have an attorney who will fight for you in this process, but it’s also important to know recognize a good offer when the insurance company makes one to you.  In the world of personal injury, an experienced attorney like those at Dansker & Aspromonte will be able to recognize when the insurance company has made a fair and reasonable offer and counsel you about whether that is your best option moving forward.

Ultimately, the decision about whether to settle or litigate will boil down to the strength of your case and the economics of the situation.  Settling a case brings certainty to the outcome of your case and guarantees that you will get paid something for your injuries.  This may be critical for people who are in a dire spot due to the injury, and not every case is a winner at trial.

Further, litigation is an expensive process, and those expenses will be deducted from whatever award you receive from the jury at trial—assuming you win at trial.  If you proceed to trial it is possible to lose, but you could also win at trial and receive a verdict that is less than the insurance company’s settlement offer.  With that in mind, you should also consider the fact that your case expenses will be lower if you settle earlier than if you go to trial.

This is not to say you should just take the first offer you get or never consider going to trial on your case.  Often, an insurance company will make an offer that is insultingly low, and it should be rejected.  Typically, these offers will go up as trial approaches and certain milestones pass in the case.  Another reason you may choose to try your case is if it is a very strong case with a good argument for punitive damages.

Every case is different however.  That’s why it is important to consult with an experienced attorney to discuss the unique circumstances in your case.

Conclusion

As you now know, New York law offers a complex array of theories under which a driver could be found negligent, but the value of your case at trial will be reduced to the extent that you were at fault.  There are a huge number of factors that will influence the resolution of a case, and many of them bear on how a jury will see a defendant’s conduct in your particular situation.  To prove that the defendant was negligent in your situation, you should begin gathering evidence as soon as your are safely able to do so.

Beyond that, you should contact an experienced pedestrian accident liability lawyer like ours at Dansker & Aspromonte for a free case evaluation.  Our attorneys have a deep understanding of the innerworkings of these cases and are here for you.  Call us now at (516) 206-6723 or by contacting us at our online portal, which is linked here.

[1]  “Developing, Implementing, and Sustaining Pedestrian Safety Programs” (accessed 3/16/2025).

[2]   National Highway Traffic Safety Administration, “Pedestrian Safety Zones” (accessed Dec. 2024), https://www.nhtsa.gov/book/countermeasures-that-work/pedestrian-safety/countermeasures/other-strategies-behavior-change/pedestrian-safety-zones#:~:text=Pedestrian%20safety%20zone%20programs%20can,problem%20within%20a%20limited%20area.

[3]  Karsten Moran, “’Walkable’ New York City Became Deadlier for Pedestrians in 2024,” The New York Times (1/1/2025), https://www.nytimes.com/2025/01/01/nyregion/walkable-new-york-city-became-deadlier-for-pedestrians-in-2024.html.

[4]  Id.

[5]  Diane Kelsall & Donald A Redelmeier, “Winter road safety is no accident” (March 1, 2016), https://pmc.ncbi.nlm.nih.gov/articles/PMC4771527/?utm_source=chatgpt.com.

[6]  L.J. v. Zhang, 212 N.Y.S.3d 789 (2024).

[7]  Elliott v. City of New York, 95 N.Y.2d 730, 735-36 (N.Y. App. Ct. 2001).

[8]  Elliott v. City of New York, 95 N.Y.2d 730, 735-36 (N.Y. App. Ct. 2001).

[9]  NY CPLR § 1411.

[10]  N.Y. VEH. & TRAF. Law § 1146; N.Y. VEH. & TRAF. Law § 1231; N.Y. VEH. & TRAF. Law § 1122-a.

[11]  Keefe v. Lee, et al., 197 N.Y. 68 (N.Y. App. Ct. 1909).

[12]  Keefe v. Lee, et al., 197 N.Y. 68 (N.Y. App. Ct. 1909).

[13]  Gumb v. Twenty-Third St. Ry. Co., 114 N.Y. 411 (1889).

[14]  “Attorney Involvement in Auto Injury Claims,” The Institutes – Insurance Research Council (published July 8, 2014), https://www.insurance-research.org/research-publications/study-finds-more-auto-injury-claimants-are-hiring-attorneys.