法律英语：68 Those Pesky Pedestrians（在线收听）

Hello, and welcome to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. I’m your host, Adam Freedman

But first, your daily dose of legalese: This podcast does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.   

Today’s episode: Those Pesky Pedestrians

Ariadne writes:

I live in a Kansas college town with a quaint downtown area.  The pedestrians down here ignore the pedestrian walk signals all the time.  Many times, they won't even use the painted crosswalk lines in the road.  Is it illegal for me to hit jaywalkers with my car?

The short answer is: I wouldn’t make a point of it. Seriously, hitting jaywalkers with your car can get you into a heap of trouble. Although Ariadne might have posed her question in jest (at least, I hope so), it raises some genuine legal issues.

Now I know that jaywalkers can be annoying, but Ariadne’s quaint college town would probably be a lot less quaint if motorists were free to create their very own version of Death Race.

The fact is, any car accident can expose the driver to both criminal and civil liability. First let’s consider criminal law. Granted, there’s no specific crime for mowing down jaywalkers; however, if you cause a pedestrian’s death you may be charged with Vehicular Homicide – that’s the general name for state laws that criminalize negligent or reckless driving that leads to a person’s death.

Generally speaking, vehicular homicide laws require proof beyond a reasonable doubt that the driver failed to recognize a substantial risk that would have been apparent to a reasonable person. Sometimes, the standard is higher and requires proof that the driver actually did recognize the risk and disregarded it anyway. In most states, proof that the driver was under the influence of alcohol or drugs will suffice to establish vehicular homicide.

These same standards will apply even if you don’t cause the pedestrian’s death. You won’t be charged with Vehicular Homicide, but will most likely be charged under your state’s criminal negligence law. So again, the issue will be whether you failed to recognize the risk, or whether you recognized the risk and disregarded it.

The fact that the pedestrian was jaywalking will be relevant to the issue of the driver’s negligence. The ordinary reasonable person is not expected to be constantly prepared for pedestrians walking willy-nilly onto crowded streets. And so, whether a driver was criminally negligent or reckless may turn on such factors as how suddenly the pedestrian entered the road, the conditions of the road, the time of day, and how much time the driver had to stop.

And so, while Ariadne has identified an interesting issue, I’m not sure she’s looking at it the right way. Later in her email she asks:

What if the pedestrians who are walking in the road illegally are also doing it in a deliberately taunting manner, or are walking especially slowly for the purpose of holding up traffic?

Granted, that sort of behavior might make the pedestrian appear to be an inviting target, but it actually increases the likelihood that you’ll be found guilty of a crime. If the pedestrian is drawing attention to himself and/or holding up traffic, then the ordinary reasonable driver would be expected to have enough warning of the situation to be able to avoid hitting the pedestrian. I know it’s not fair, Ariadne, but the law’s the law.

As for civil liability, that annoying, taunting, jaywalking jerk (or his next of kin) might very well sue you if you hit him with your car. In most states, such a lawsuit will come down to a question or comparative negligence, or comparative fault. Under this doctrine, the jury would be instructed to look at the extent to which both the driver and the pedestrian failed to exercise reasonable care. For example, if a jury finds that the driver was 70% at fault, and the jaywalking pedestrian was 30% at fault, the jaywalking pedestrian would be able to recover 70% of his damages (which may include medical expenses, lost wages, and compensation for pain and suffering).

If the pedestrian was jaywalking, the jury may well conclude that he or she is at least partly at fault, but the exact percentages are determined by the jury and depend on the facts of each case.

Not every state uses “comparative negligence.” There are still a few that embrace an older rule called “contributory negligence” – and that rule makes it very hard for the jaywalker to recover any money at all.   Under the contributory negligence theory, an accident victim’s failure to exercise due care prevents him or her from recovering anything in a lawsuit. In other words, if the driver can show that the pedestrian’s own carelessness contributed to the accident – even if the driver was speeding or talking on his cell phone or otherwise negligent – then the driver will not be liable to the pedestrian.

Today, the rule of contributory negligence exists in only five states and – I’m sorry to break this to you, Ariadne – Kansas is not one of them. So please drive carefully. And for the rest of you listeners, especially those who live in Kansas, I urge to wait for the signal before crossing the street!

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