For something as simple as crossing the street, it turns out the rules are rather complicated

Posted at 5:00 AM, Apr 04, 2019
and last updated 2019-04-04 15:47:07-04

Kristin Schroeder has been walking to and from work for more than 15 years. Walking between her Covington home and her Downtown office, she logs more steps in a day than most do in a week, maybe even a month.

In all that time, certain rules of the road have become unconscious thought for her: Look both ways before you cross the street. Follow traffic signals. Keep your phone down and your eyes up.

"I just try to be aware," Schroeder said. "I think it's my ownership to pay attention. I try not to be distracted by music in my ears and things like that."

It's pretty simple stuff for many, particularly those who are taught these rules as children when they first start walking through their neighborhoods to school.

But even a seasoned pedestrian like Schroeder is still learning just how complex the rules of the road really are for the simplest mode of transportation. It turns out, there's very little at all that's straightforward about walking around your neighborhood.

Where can pedestrians cross, and when?

There are more assumptions about these questions than there are clear answers. The assumptions run the gamut from, "The pedestrian always has the right-of-way no matter what," to, "Pedestrians can only cross in marked crosswalks with a walk signal."

Turns out, though, that neither of those assumptions is true.

Ohio traffic codes classify pedestrians as an element of traffic. That means a person's body itself is considered a vehicle that -- in certain circumstances -- can possess the "right-of-way," or the right to move through a space unobstructed by another vehicle using the road.

According to Ohio trial attorney Steve Magas, though, this puts pedestrians in a precarious position right from the start. Magas has made a career representing people injured while walking or riding a bicycle. He said the situation is precarious because, at some point, pedestrians almost always have to leave the sidewalk and enter the street.

"Pedestrians are in this weird spot because they go from a place that is off the road to a place that's on the road," he said.

That's when it becomes sticky terrain to determine who has the right-of-way when a pedestrian steps from the sidewalk -- where she always has the right-of-way -- into the road.

Let's take what would seem to be the most straightforward scenario: a person crossing in a crosswalk, with a walk signal.

"Say there's a crosswalk. Once you are lawfully in that crosswalk, then you have the right-of-way," Magas said.

But then he went on: "At least over your half of the crosswalk," he chuckled. "It's weird."

He nuanced it further, saying, "Even at a (walk) light, the law requires the pedestrian to yield to, say, someone who's making a right turn who comes up into the crosswalk, even though there's a red light."

That's where the "at least over your half of the crosswalk," comes into play: Imagine you're crossing in a crosswalk with a walk signal and a vehicle from the opposite direction begins to turn right into your crosswalk. You, the pedestrian, must yield to that vehicle, instead of the other way around.

Schroeder said of all the near-misses she's experienced while walking, the majority happen while she's in a crosswalk with an activated walk signal.

"I think I've got the green guy telling me it's OK to go, and I'll always have to look over my shoulder because there will be cars waiting to turn left and trying to get where they're going," she said. "I was a little surprised because I thought I had the right-of-way, and I'm learning that that might not necessarily be the case."

Kristin Schroeder, of Covington, Ky., speaks with WCPO near her office on Fourth Street Downtown. (Michael Benedic/WCPO)

It was a similar scenario that dropped Westwood resident John Eby to the ground in a daze last fall, after a driver turned left on a green light from Harrison Avenue into the crosswalk where Eby was crossing, with a walk signal. WCPO spoke with Eby earlier this year about the incident, and he said it's left him on guard.

"The streets are -- it's tough," he said. "I didn't realize how tough it is to walk across the street until I got hit. Now I'm paranoid, right?"

And what about crossing outside of a marked crosswalk? That's never OK, right?

Wrong, Magas said.

"Where there's an intersection between a road and another road, but there's no crosswalk there, it's an 'unmarked crossing,'" he said. "That's a place where you're allowed to cross, and people who are crossing there have the right-of-way over you (the driver). You shouldn't be honking at them and screaming by them and yelling at them."

An 'impossible' calculation

Ohio law doesn't protect just pedestrians in the event of the crash. It also protects drivers against people "suddenly leaving the curb and putting themselves in immediate danger," Magas said.

Cincinnati police recently faced a situation like this when, on March 23, they said a 16-year-old "ran into traffic" from between two parked cars on Harrison Avenue, according to responding officer's report. The officers' investigation found that impairment or excessive speed were not a factor in the collision and determined the teen to be "at fault" for the crash.

That teen died from his injuries several days later.

In this case, it's possible that neither the teenage pedestrian nor the driver could see each other due to the cars parked along the side of Harrison Avenue.

In other cases, though, when driver and pedestrian can see each other, the law does not clearly spell out what it means to "put oneself in immediate danger," Magas said.

"Legally, the law is a little goofy in that. It's a little hard to figure that out on the fly," he said. "It's odd. You're supposed to stand there at some busy place, do the math. 'OK, that car is 87 feet away going 30 miles an hour, so if I come out now they should have sufficient stopping distance.' You're supposed to do that analysis, as is the motorist who sees you standing there. And you're thinking, 'Well, gee, do I have to stop, yield, slow down? Do I have the right-of-way? Do they?'

"It's impossible."

Attorney Steve Magas represents people injured while riding a bicycle or walking in Ohio. (Eric Clajus/WCPO)

This creates what Magas calls the "Blanche DuBois rule," referring to the Tennessee Williams play "A Streetcar Named Desire." In the play, the lead character, DuBois speaks the famous line, "I have always depended on the kindness of strangers."

"(Pedestrians) have to rely on the kindness of strangers to some degree," Magas said. "People who are nice on the road driving the 'two-ton tank' are going to slow down, maybe they’ll wave them on."

Magas has been working with the Ohio Department of Transportation and other officials to try to clarify the language of the traffic code in this regard.

Who's 'at fault?'

The ambiguity of these rules makes it a tall order for police -- or a jury, in the case of a lawsuit -- to determine who is to blame for a collision, Magas said.

Short of video evidence, police must rely on eye-witness testimony, which can often become a he-said-she-said between the driver and the pedestrian. If the case goes to court, Magas said, it comes down to a judge or jury's discretion.

"You have to take depositions and put people under oath and litigate these issues, and file briefs with the court and let the court try to sort out what the pedestrian should or could have done differently," he said. "And a pedestrian often loses because these cases generally come up in situations that aren’t glaringly obvious as to what happened."

Cincinnati police data available on the city's open data portal does not indicate who is at fault in the case of a pedestrian strike -- or any crash for that matter. The data entries do indicate GPS coordinates associated with a crash, but those are only approximations within as much as 12 to 20 feet and correspond with the responding police cruisers and not where the collision actually occurred.

But even with this data, the ambiguity of putting oneself in "immediate" danger remains too ambiguous for Magas' comfort.

"The wording is really vague. One of the changes we’d like to see is have that law clarified," he said. "You shouldn't have to guess whether or not you have the right-of-way."

WCPO made multiple requests to the Cincinnati Police Department for any data available regarding finding of fault in pedestrian-involved crashes, but did not hear back as of Wednesday evening.