HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Friday, August 5, 2022

Regulating the Pedestrian Safety Crisis

Gregory H. Shill (University of Iowa), Regulating the Pedestrian Safety Crisis, 97 N.Y.U. L. Rev. Online (2022):

In the 2010s, the United States entered a pedestrian safety crisis that is unique among wealthy nations. Deaths of people on foot surged more than 46 percent during that decade, outpacing the increase in all other traffic deaths by nine to one. There are no signs of improvement this decade; to the contrary, and despite a pronounced decline in driving during some of the pandemic, the early years of the 2020s have proven even deadlier to American pedestrians, with an estimated 7,342 pedestrians killed in 2021—an increase of 54 percent over 2010. These deaths are not randomly distributed; rather, they magnify racial disparities. Even after adjusting for differences in walking rates, Black pedestrians are at a two-thirds higher risk of being killed by a motorist than their white counterparts.

While the pedestrian safety crisis has many causes, there is growing evidence that the engorgement of the American vehicle has played an important role. Auto companies earn higher profit margins on large vehicles, and consumers prefer their greater comforts. But the size, height, and weight necessary for those comforts combines to amplify force on impact.

This type of externality risk presents a classic case for regulation. Yet America’s vehicle safety regulator, the National Highway Transportation Safety Administration (NHTSA), considers pedestrian safety almost completely alien to its mission.

This Essay argues that pedestrians are, quintessentially, a group whose wellbeing vehicle safety regulators should prioritize. This argument is based on three principles. First, the universe of people affected by vehicle design risk extends beyond the purchaser to people outside of it. Second, among the various groups so encompassed, pedestrians are maximally exposed: they lack the steel cages, seatbelts, airbags, and other protections present in every modern vehicle. And third, pedestrians by definition do not benefit from the comforts of newer, larger vehicles. While automobile buyers can be expected to take their own safety into account at time of purchase, it would be unwise to expect them to select a vehicle based on the safety of strangers.

In March 2022, NHTSA announced a proposed update to a marquee regulatory program it administers, the New Car Assessment Program (NCAP). This Essay, one of the first works of legal scholarship to focus on NHTSA’s failure to regulate for pedestrian safety, calls upon NHTSA to incorporate pedestrian safety into the update. Specifically, it develops four policy actions NHTSA should take in integrating pedestrian safety into NCAP: include pedestrian safety in NCAP; make certain changes to vehicle design criteria; make certain changes to vehicle technology criteria; and adjust its evaluation methods so they mimic common fatal pedestrian crash scenarios.

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