In New Mexico, the driver who hits a person walking or riding a bike is usually the one who pays, through the driver's insurance and sometimes through your own. State law requires every driver to use due care around pedestrians, gives walkers the right of way in crosswalks, and gives cyclists the same rights on the road as any vehicle. What decides most of these cases is who had the right of way, what the lighting and the evidence show, and how much insurance is available.
Why this matters in New Mexico
New Mexico has the highest pedestrian death rate in the country. In the Governors Highway Safety Association's 2023 report, the state had 4.68 pedestrian deaths per 100,000 people, the highest of any state, with 99 people killed on foot that year on preliminary numbers. Around Gallup, many of these crashes happen on wide, fast roads like Route 66 and US 491, often after dark.
Who has the right of way?
- In a crosswalk. Where there is no working signal, a driver must yield to a pedestrian in a crosswalk, slowing down or stopping if needed (Section 66-7-334). A driver may not pass a car that has stopped to let someone cross.
- Outside a crosswalk. A person crossing anywhere other than a marked or unmarked crosswalk must yield to vehicles (Section 66-7-335). That does not end a claim, as the next rule explains.
- Every driver, everywhere. Regardless of the other rules, every driver must "exercise due care to avoid colliding with any pedestrian upon any roadway," and must take proper precaution on seeing a child or a confused or incapacitated person (Section 66-7-337).
- Walking along the road. Where there is a sidewalk, pedestrians should use it. Where there is none, the law says to walk on the left side, facing traffic, when practicable (Section 66-7-339).
Cyclists have the rights of a driver
A person riding a bicycle on a roadway has "all of the rights" and "all of the duties applicable to the driver of a vehicle" (Section 66-3-702). New Mexico courts have put cyclists in the same duty category as other traffic. Cyclists ride as near to the right side as practicable and may not ride more than two abreast outside a bike lane or path (Section 66-3-705). A driver who turns across a cyclist, drifts into a bike lane, or opens a door into one is judged by the same rules as if the cyclist were a car.
What if you were partly at fault?
You can still recover. New Mexico uses pure comparative negligence (Scott v. Rizzo, 1981): if you were crossing outside a crosswalk, wearing dark clothes at night, or riding without a light, your recovery is reduced by your share of the fault, not erased. Insurance companies lean hard on this rule in pedestrian cases, which is why the evidence of what the driver could see, and how fast the driver was going, matters so much.
Who pays: the driver's insurance, and often your own
New Mexico only requires drivers to carry $25,000 of bodily injury coverage per person (Section 66-5-215). A pedestrian or cyclist hit by a car usually has serious injuries, and $25,000 rarely covers them.
Your own uninsured and underinsured motorist coverage can fill the gap. In New Mexico, insurers must offer that coverage, and it stays on the policy unless it was rejected in writing (Section 66-5-301). Many policies cover you even when you were walking or riding a bike, not just when you were in your car. If the driver had no insurance or drove away, it may be the main source of recovery. Bring us every auto policy in your household, even if you were not driving.
Hit and run
A driver involved in a crash that injures someone must stop at the scene (Section 66-7-201). If the driver fled, call police right away, write down anything you remember about the vehicle, and ask nearby businesses to save their camera footage before it is recorded over. Your own uninsured motorist coverage is often what pays in a hit and run.
When a road, sidewalk, or crossing was the problem
Sometimes a broken streetlight, a missing sidewalk, or a badly maintained crossing played a part. Claims against a city, county, or the state fall under the Tort Claims Act, which covers negligent maintenance of roads (Section 41-4-11) and generally requires written notice within 90 days (Section 41-4-16). That deadline is much shorter than the three years for most injury claims (Section 37-1-8). A crash on the Navajo Nation follows different rules again; our page on Navajo Nation accident jurisdiction explains which court can hear it.
What to do after you are hit
- Get medical care and keep every record. Head, knee, and hip injuries are common and sometimes slow to show.
- Get the police report number and the names of witnesses.
- Take photos of the spot, the crosswalk or shoulder, the lighting, and your injuries, or ask someone to.
- Keep your bike, helmet, and clothing as they are. Do not repair or throw them away; they are evidence.
- Do not give a recorded statement to the driver's insurance company before you talk to a lawyer.
Where we come in
Keeler & Keeler represents people hurt walking and riding in Gallup, McKinley County, and across the Four Corners. We get the crash report and the camera footage, identify every policy that applies, including yours, and push back when an insurer tries to blame the person who was hit. Our Gallup car accident and personal injury pages cover more of how these claims work.
Call (505) 722-5608 for a free, confidential case review. There is no fee unless we win; clients may remain responsible for case costs and expenses.
General information about New Mexico law, not legal advice. Every crash is different, and insurance coverage depends on the wording of each policy.
