A recent Massachusetts Appeals Court ruling just blew up the old playbook for how defendants handle cases involving a pedestrian struck by car in Boston, especially when someone was jaywalking. The new focus is all on comparative negligence, which completely guts the old assumption that a jaywalker’s fault means they can’t recover anything. For attorneys, this makes the entire legal field more complex, forcing us to go back to basics with full accident reconstructions and getting detailed witness accounts on the record fast.
Key Takeaways
- The MA Appeals Court decision in Choe v. Massachusetts Bay Transportation Authority, 102 Mass. App. Ct. 338 (2023), confirms that jaywalking isn’t automatic negligence for a pedestrian.
- Defense lawyers in Boston can’t just point to the jaywalking anymore. They have to prove how that specific act actually caused or contributed to the collision.
- The new standard forces a deep dive into all factors, driver behavior, speed, weather, road conditions, to figure out the real breakdown of fault under M.G.L. c. 231, § 85.
- If you’re a defendant, you need to prioritize getting an investigator to the scene immediately, pulling traffic camera footage, and interviewing any independent witnesses to build a defense.
The New Standard for Pedestrian Negligence in Massachusetts
The old-school thinking was simple: if a pedestrian was jaywalking, they were mostly, if not entirely, to blame. That whole perspective was upended by the Massachusetts Appeals Court’s decision in Choe v. Massachusetts Bay Transportation Authority, 102 Mass. App. Ct. 338 (2023). The ruling, which landed in November 2023, makes it clear that while jaywalking is against the law (M.G.L. c. 89, § 11), it doesn’t automatically mean the pedestrian was negligent.
The court drew a sharp line: breaking a traffic statute is just *evidence* of negligence, it isn’t conclusive proof. This means a defense attorney can’t just stand up and say “they were jaywalking, case closed.” Now, the defense has to do the work to show exactly how the act of crossing outside a crosswalk directly led to the accident and what a reasonably careful person would have done instead. It definitely puts more of a burden on the defense to connect the dots between the pedestrian’s choices and their injuries in a pedestrian accident Boston claim.
Injured as a pedestrian?
Know what your case is worth with AI Pedestrian Payout Calculator for FREE!
Start my free evaluationI think this was a long-overdue change. For too long, the simple fact of jaywalking let drivers off the hook for their own duty of care. Every single driver has to be paying attention, whether a pedestrian is in a crosswalk or not. This ruling just forces a more honest look at who is actually at fault, which is what comparative negligence is supposed to do in the first place.
Comparative Negligence Under M.G.L. c. 231, § 85
Massachusetts law, specifically M.G.L. c. 231, § 85, follows a modified comparative negligence rule. Here’s how it works: a plaintiff can still get paid even if they’re partly to blame, but their share of the fault can’t be more than the defendant’s. If a jury finds the plaintiff is 51% or more at fault, they get nothing. Zero. If they’re found to be 50% or less at fault, their total damages are just reduced by their percentage of fault.
The Choe decision changes everything about how this law applies when a pedestrian is struck by car. Before this case, it was a pretty standard defense argument that a jaywalking pedestrian was almost certainly more than 50% at fault, which would kill their claim right out of the gate. Now, the defense has to build a case showing the driver was acting reasonably and that it was the pedestrian’s own actions that were the main cause of the crash.
Injured on the job?
3 in 5 injured workers never receive their full benefits. Your employer’s insurer is not on your side.
Think about a crash on Commonwealth Avenue by BU. A student crosses mid-block, but at the same time the driver is going 15 over the limit while checking a text. What happens now? A court is going to demand a much deeper look. What was the driver’s actual speed? How well could they see the student? Would this crash have even happened if the driver had been paying attention and going the speed limit? These are the questions that now decide the split of fault, not just the fact that the student wasn’t in the crosswalk.
Building a Strong Jaywalking Defense
With the law updated, defense attorneys in Boston have to get a lot more sophisticated. Just pointing a finger at the jaywalking pedestrian isn’t a strategy anymore. Here are the real, practical steps for building a defense:
Immediate Accident Scene Investigation and Data Collection
You have to move fast because evidence starts disappearing the second an accident is over. This is your checklist:
- Police Reports: Get the official Boston PD accident report immediately. It has initial statements, witness info, and a first-pass diagram of what happened.
- Traffic Camera Footage: Boston has cameras everywhere, especially in busy spots like the Seaport, Downtown Crossing, and around the Longwood Medical Area. You have to submit a request to the Boston Transportation Department (boston.gov/departments/transportation) for that footage, because it can give you totally objective proof of how fast the car was going and what the pedestrian was doing. Honestly, video is often the most powerful evidence you can get.
- Witness Identification and Statements: Find independent witnesses and get their story down on paper (or a recording) while it’s still fresh in their minds. Their unbiased view can make or break a case.
- Vehicle Telematics Data: So many modern cars have a “black box” that records speed, braking, and steering. If you can get that data, you have objective proof of what the driver was doing right before impact.
- Scene Photography and Measurements: Take pictures of everything, skid marks, debris, traffic signs, the exact point of impact. Measure sightlines and crossing distances. You can’t reconstruct an accident without this raw data.
Expert Witness Testimony
Hiring an accident reconstruction specialist is basically non-negotiable now. These experts take all the physical evidence, video, and data to build a scientific timeline of the crash. They can establish:
- Pedestrian Visibility: An expert can determine if an attentive driver should have seen the pedestrian, considering the time of day and lighting conditions.
- Driver Reaction Time: Based on the evidence, did the driver realistically have enough time to stop or swerve to avoid the collision?
- Speed Analysis: They can calculate the vehicle’s speed, which might be different from the driver’s claim or the posted limit, and determine if it was safe for the situation.
- Causation: An expert can explain precisely how the jaywalking contributed to the crash and can testify whether using a nearby crosswalk would have prevented it.
For example, if a crash happens on Storrow Drive, where pedestrians aren’t allowed at all, an expert can clearly show how the pedestrian’s presence was completely unforeseeable. But if the same thing happens on a busy street like Tremont Street in the South End, that expert will have to analyze how a driver’s heightened duty of care in a dense urban area plays into the fault calculation, even with the jaywalking.
Challenging the Pedestrian’s Claim of Due Care
Even when jaywalking, pedestrians still have a duty to act reasonably to protect themselves. A good defense will show that the pedestrian failed to do so by:
- Darting into Traffic: Did they just appear from between parked cars without looking?
- Ignoring Traffic Signals: If there was a crosswalk right there, did they cross against a “Don’t Walk” sign?
- Distraction: Was the pedestrian looking at their phone, wearing headphones, or otherwise not paying attention to the cars around them?
- Lack of Visibility: Were they wearing all black at night? This is a huge factor in poorly lit areas, like certain sections of Franklin Park.
Proving these things can seriously drive up the pedestrian’s percentage of fault under M.G.L. c. 231, § 85. If you can get their fault over 50%, their case is over.
The Need for Early Legal Intervention
Because of the complexity *Choe* introduces, you have to get defense counsel involved right after a pedestrian accident in Boston happens. If you wait, evidence disappears, witness memories fade, and you’re starting from a much weaker position.
In my experience, getting key evidence like traffic camera footage is a race against the clock. Many city systems automatically purge their video recordings after 30 days. If you delay, that critical evidence could be gone for good, and building a strong defense becomes exponentially harder. Getting a lawyer involved early also means they can immediately send a preservation letter for the vehicle’s data and start picking apart the police report for errors or omissions that can help the defense.
I’ve had cases where we sent a timely request to Boston’s Public Works Department for camera footage and got back a video that clearly showed the pedestrian sprinting into traffic against a red hand signal. That one piece of evidence completely changed the case. Without that quick action, it would have been our client’s word against theirs, and the outcome would have been a total coin toss.
Settlement Negotiations and Litigation
With this new standard, expect settlement talks to drag on longer as both sides fight over the specific percentages of comparative negligence. As a defense attorney, you have to be ready to:
- Educate Adjusters: Don’t assume insurance adjusters know about this. Many still work off the old “jaywalking equals fault” assumption. You need to present them with the Choe ruling and explain what it means for the case value.
- Present a Strong Factual Case: To get a good settlement, you need a file packed with evidence, expert reports, witness statements, photos, that paints a clear picture of the pedestrian’s own negligence.
- Prepare for Trial: If you can’t get a fair settlement, you have to be ready to go to trial in a place like Suffolk Superior Court. This means being able to tell a jury a compelling story, with visuals and expert testimony, that explains how the pedestrian’s choices were the real reason the accident happened.
The game has changed for pedestrian cases in Boston. The *Choe* decision means that an evidence-heavy defense that looks at every single factor is no longer just a good idea, it’s essential for any defendant. Proactive investigation, bringing in experts, and truly understanding comparative negligence are the only ways to defend these claims now.
So is a jaywalker automatically at fault in Massachusetts now?
Nope. The 2023 case Choe v. Massachusetts Bay Transportation Authority, 102 Mass. App. Ct. 338, made it clear that jaywalking is not automatic (or “per se”) negligence. It’s a traffic violation, sure, but the defense still has to prove that the act of jaywalking actually contributed to the crash before it can be used to assign fault.
What’s the comparative negligence law in Massachusetts?
Massachusetts has a “modified” comparative negligence rule (M.G.L. c. 231, § 85). A person can collect damages only if their share of the fault is 50% or less. If a jury decides you are 51% or more to blame for your own injuries, you are barred from recovering any money. If you’re 50% or less at fault, your total award is just reduced by your percentage of fault.
What’s the most important evidence to get in a Boston pedestrian accident case?
The most important evidence is stuff that disappears fast: traffic camera footage from the Boston Transportation Department, statements from independent witnesses, and data from the car’s own computer (telematics). Of course, you also need police reports and detailed photos/measurements from the scene. Getting this stuff right away is critical.
Can a driver still be at fault if the pedestrian was jaywalking?
Absolutely. A driver always has a duty to be attentive and operate their vehicle safely. If a driver’s own negligence, like speeding, looking at a phone, or not paying attention, was a factor in the accident, they can be held partially or even fully responsible, regardless of whether the pedestrian was in a crosswalk.
How do expert witnesses help in a jaywalking defense?
Accident reconstruction experts are essential for explaining the physics of a crash to a jury. They analyze the evidence to calculate things like vehicle speed, driver reaction time, and how visible the pedestrian was. Most importantly, they can provide a scientific opinion on how the pedestrian’s actions directly led to the collision which helps the jury assign fault fairly.
