The Journal of the Virginia Trial Lawyers Association, Volume 25 Number 3, 2015 39 Miscellaneous Torts Handling a pedestrian case by J. Penn Crawford Pedestrians are virtually helpless and vulnerable in the event of a collision with a car. With no real means of escape and nothing to shield them, pedestrians are without protection against an oncoming vehicle and are at the risk of sustaining catastrophic injuries. Collisions with pedestrians are caused by a variety of factors including a driver s texting, speeding, driving while drunk and other negligent actions. In Virginia in 2012 alone, 100 pedestrians were killed and another 1,862 pedestrians were injured doing simple everyday activities such as walking through a parking lot or crossing the street. 1 Crossing while not at intersection-rural accounted for 52 pedestrian injuries, whereas crossing while not at intersection-urban accounted for 306 pedestrian injuries. 2 Historically, males tend to make up a higher percentage of pedestrian fatalities than women. The most recent data year, 2012, was no exception with pedestrian males in Virginia being killed at a rate of 38-6 over their female counterparts. 3 Pedestrian cases have much in common with auto cases, but there are some distinct differences in the law and how the two types of cases are handled. For example, if your driver/plaintiff was drinking you often have a big problem; however, if your pedestrian/plaintiff was drinking you actually have an argument that they were being responsible by walking instead of driving. In pedestrian cases, defense counsel will score far fewer points with the jury if he chooses to hold up a picture of a car with no property damage. On the other hand, just like with auto cases failure to keep a proper lookout, is an instruction that cuts both ways. What follows is not a treatise on handling a pedestrian case, but instead preliminary intake and investigation steps that are more specific to pedestrian cases. Basic steps such as gathering all of the contact information for your client and determining what insurance coverage is available are assumed and not covered here. Following intake and investigation is a brief informal survey of law which does not cover all relevant pedestrian law given the confines of this article, but hopefully will give the practitioner a good starting point. Intake and investigation Intake and investigation go hand in hand as intake will be the first step of your investigation. Many of the questions asked are the same as those that would be asked for a car vs. car collision, but others are pedestrian specific. The scene: when & where Where did the collision occur? Was your potential client in a crosswalk when she was hit? If not, was there a crosswalk in the area? If she was not in a crosswalk, was she in an area where pedestrians regularly cross? What time did the collision occur? If the collision occurred at night, was the area where it occurred lit? Was it a time of day that the defendant driver should have had his headlights on? Google Maps is not a substitute for viewing the scene, but it is a good start. With Google Maps you can look at the street from a number of perspectives and quickly locate any businesses around the collision scene that may have witnesses to interview or video to preserve. Google Maps also gives you a reference point for your client s version of events and allows them the opportunity to diagram what they can of the collision, such as where in the intersection she was hit and where the defendant vehicle was when she first noticed it.
40 The Journal of the Virginia Trial Lawyers Association, Volume 25 Number 3, 2015 It is also a good idea to get the approximate time of the collision to take pictures showing the lighting environment when the accident occurred. You can do this even if the collision occurred in June and the client is seeing you in November by looking at the historical weather data and reviewing along with a sun calculator. 4 The client What part of your client was hit by what part of the car? What shoes was your client wearing? You can expect that there will be an allegation that your client unreasonably darted out or ran, leaving the defendant driver surprised and unable to react in time. Are you lucky enough that your client just happened to be wearing reflective gear or were they dressed in dark clothes? Do the facts suggest that your client was hit from the waist down by the middle of the defendant s car? Did the defendant clip the client s back leg as the client was just about to make it out of harm s way or did the client s front foot get run over by driver s side front tire of the defendant s vehicle suggesting the client walked into her troubles? Was she the sole person in the crosswalk? If so, why was no one else around, if not, was anyone else hit? Were others in the crosswalk able to take evasive action that your client could not or did not? Gathering the evidence/visiting the scene Assuming that you decide to pursue the case further after intake, the next step is to gather all of the available evidence. Many of the steps here overlap with car vs. car cases such as seeking out witnesses to interview in nearby homes and businesses as well as obtaining a copy of the accident report along with interviewing the investigating officer to compare the results of his investigation with your client s version of events. No internet snapshot of a scene can take the place of an in-person visit. A professional investigator should be sent to the scene to take pictures from multiple perspectives, including the plaintiff s perspective, the defendant s perspective and the perspective of any witness. These photographs should be taken with a lens that approximates the perspective of the natural eye and should be captioned and catalogued to ensure that counsel can easily recall the perspective of each photograph. A professional investigator should also make measurements of the roadway including each individual lane involved, the distance a pedestrian would have to traverse to successfully complete their journey without incident, as well as the distance the client actually traversed before being hit, which will yield the remaining distance to safety. If you were contacted early enough that identifiable skid marks are still present when the investigator arrives, you will want those measured as well and you will want photographs taken. Where there are traffic lights and/or signals governing pedestrian traffic, the investigator should ascertain and time the sequence while he is visiting the scene. This can later be checked against the locality s traffic safety engineer who can give the sequence and timing of the lights as well as whether or not there was any report of malfunction on the day in question. While measurements and photographs are often best left to an investigator who can testify in court, personally visiting the scene seldom fails to pay off with additional insights and perspectives and the effect is magnified if your client is there with you. Try to time your visit to mimic the conditions of the collision as closely as possible. For example, there are parts of downtown Richmond that would be teeming with people during working hours Monday through Friday. Some of those same parts will be a ghost town shortly after working hours while other parts will generate a night life. Timing your scene visit to the time of collision will give you a feel for how much pedestrian traffic is in that area at that time and what other types of people could have been affected by the defendant s negligence. The site visit also gives the client the best opportunity to remember and explain how the collision occurred. Did the collision occur near a public transit spot? If so there may be video images of how the collision occurred. Each individual case will have its own investigative needs which may require more than is laid out here but the above steps are often a good start. Researching the pedestrian claim: Start with the statute Often times as practitioners, we start with the jury instructions and work backwards from there. For pedestrian cases it is worth it to pull the major statutes first from which many of the pedestrian jury instructions are derived. Statutes are like mathematical word problems; every single word matters so it is a mistake to go off of memory and not refresh yourself with another reading of the statute once you know the facts of your case from intake and investigation. For most pedestrian cases the first statutes that should be reviewed are Va. Code 46.2-923, How and where pedestrians to cross highways, and Va. Code 46.2-924 titled Drivers to stop for pedestrians; installation of certain signs; penalty. Casting aside local ordinances for purposes of this article, Va. Code 46.2-923 reads in pertinent part: When crossing highways, pedestrians shall not carelessly or maliciously interfere with the orderly passage of vehicles. They shall cross, wherever possible, only at intersections or marked crosswalks. Where intersections contain no marked crosswalks, pedestrians shall not be guilty of negligence as a matter of law for crossing at any such intersection or between intersections when crossing by the most direct route. The first part of the statute merely explains that pedestrians are not to act negligently or maliciously,
The Journal of the Virginia Trial Lawyers Association, Volume 25 Number 3, 2015 41 which is common sense. The remainder states that a pedestrian is not negligent as a matter of law for crossing at an intersection that does not have a crosswalk so long as a crosswalk is not available and the pedestrian is taking the most direct route. The statute does not cure the client of contributory negligence but turns contributory negligence into a question of fact in situations where the fact pattern of the case is in line with the facts contemplated by 46.2-923. This section forms the basis of Virginia Model Jury Instruction 14.040 Pedestrian s Duty When Crossing Highway or Street. Va. Code 46.2-924 reads in pertinent part: A. The driver of any vehicle on a highway shall yield the right-of-way to any pedestrian crossing such highway: 1. At any clearly marked crosswalk, whether at mid-block or at the end of any block; 2. At any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block; 3. At any intersection when the driver is approaching on a highway or street where the legal maximum speed does not exceed 35 miles per hour. B. Notwithstanding the provisions of subsection A, at intersections or crosswalks where the movement of traffic is being regulated by law-enforcement officers or traffic control devices, the driver shall yield according to the direction of the law-enforcement officer or device. No pedestrian shall enter or cross an intersection in disregard of approaching traffic. The drivers of vehicles entering, crossing, or turning at intersections shall change their course, slow down, or stop if necessary to permit pedestrians to cross such intersections safely and expeditiously. Pedestrians crossing highways at intersections shall at all times have the right-ofway over vehicles making turns into the highways being crossed by the pedestrians (emphasis added). Note the mandatory language of part A, that the driver shall yield the right of way to the pedestrian. The language of the statute suggests that this applies to clearly marked crosswalks, to regular pedestrian crossings which are not defined in the code, and it applies to intersections where the speed limit is 35 mph or less. The first part of section B limits part A to situations not involving law-enforcement or traffic control devices. The second sentence contains language that restricts the pedestrian from disregarding approaching traffic while crossing or entering an intersection. Note the mandatory shall in each of the last two sentences, the first of which requires the driver to change course, slow down or come to a complete stop to allow pedestrians to cross intersections safely; the second mandatory shall grants the crossing pedestrian the right of way over vehicles turning onto the highway. Va. Code 46.2-924 is keyed to Virginia Model Jury Instruction 14.030 Pedestrian s Right-of-way at Crossing or Intersection Where Speed Limit Not More Than 35 m.p.h. These statues ( 923-924) together form the basis of Virginia Model Jury Instruction 14.000 General Duties of a Pedestrian. The remaining pedestrian-focused aspects of 46.2 can be covered summarily: Va. Code 46.2-833 states that when the traffic light is non-flashing amber, traffic which has not already entered the intersection, including the crosswalks, shall stop if it is not reasonably safe to continue, but traffic which has already entered the intersection shall continue to move until the intersection has been cleared. For lights that are flashing circular red, flashing circular red arrow, flashing circular amber or flashing amber arrow, traffic must yield the right of way to pedestrians lawfully within the intersection. Va. Code 46.2-904 states that people riding bikes or personal automated devices shall yield the right of way to pedestrians on a sidewalk, shareduse path, or across a roadway on a crosswalk and must give an audible signal before overtaking and passing any pedestrian. Va. Code 46.2-925 explains what to do when a sign is flashing walk vs. don t walk. The key takeaway is the pedestrian is to proceed to a position of safety and remain there until the sign changes back to walk. The statute does not specify but implies that this imposes a duty on the pedestrian to backtrack where a position of safety is closer behind her than ahead of her. This statute forms the basis of Virginia Model Jury Instruction 14.050 Walk Don t Walk Signals. Va. Code 46.2-926 restricts pedestrians from entering a highway where they cannot be seen. This statute forms the basis of Virginia Model Jury Instruction 14.020 Pedestrians Duty Not to Step into the Street from Behind an Obstruction. Va. Code 46.2-927 gives pedestrians the right of way when boarding or alighting from buses but does not allow the pedestrian to remain there longer than is absolutely necessary. Va. Code 46.2-928 specifies that pedestrians are not to use the roadways to travel, save for those situations where sidewalks are not available or passable. In these situations the pedestrian is to keep to the extreme left side or to the shoulders where the shoulders are of sufficient width. This statute forms the basis of Virginia Model Jury Instruction 14.010 Pedestrians Duty When Traveling Along Highway.
42 The Journal of the Virginia Trial Lawyers Association, Volume 25 Number 3, 2015 Va. Code 46.2-929 prohibits pedestrians from standing in the roadway to hitchhike. Va. Code 46.2-930 prohibits loitering on bridges or the right of way portion of the highway. Va. Code 46.2-932.1 through 46.2-934 should be reviewed whenever you have a client whose vision is impaired. A driver s duty is heightened where he knew or should have known that the pedestrian had impaired vision, such as when the pedestrian is walking with a guide dog or a white cane. Wading into pedestrian case law Certain issues come up in nearly every case such as failure to keep a proper look out, right of way disputes and a few others. What follows are crib notes of case law on issues you are likely to see in many pedestrian cases. The double-edged sword of Failure to Keep a Proper Lookout Leo Butler Co. v. Wilbun, 192 Va. 263 (1951). Facts: This case focuses on whether a plaintiff used reasonable care in looking to see if oncoming traffic was close to his position before crossing an intersection. The driver, having stopped at a red light, looked right and left before proceeding into the intersection. The pedestrian was struck by the defendant driver when he had walked halfway through the intersection. There were no traffic control lights at this intersection. The defendant driver maintained that he kept a proper lookout and just did not see the plaintiff. Key Holdings: The court took special note that what is a proper lookout in a given situation is a question which can only be answered by the facts of each particular case. Leo Butler Co. v. Wilbun, 192 Va. 263, 267 (1951). The Court explained, In Oliver v. Forsyth, 190 Va. 710, 716, 58 S.E.2d 49, we said: the duty is to look with reasonable care, not an absolute duty to discover by looking, unless the thing to be looked for is in such plain view that looking with reasonable care was bound to have discovered it. 190 Va. 710, 716 (1950) (quoting Greenleaf v. Richards, 178 Va. 40, 45 (1941)). Hopson v. Goolsby, 196 Va. 832, 839 (1955). Facts: Plaintiff attempted to cross a street, without a crosswalk, several hundred feet away from an intersection. She crossed over half the street before the defendant driver collided with her. The defendant was traveling over the speed limit. Key Holdings: [Plaintiff s] duty to look was not removed by the fact that the defendant was approaching at excessive speed. That fixed negligence upon him but did not relieve her of her duty to look, the performance of which would have disclosed the danger of continuing her journey across the street. Hopson v. Goolsby, 196 Va. 832, 839 (1995). But if a person having a duty to look carelessly undertakes to cross without looking, or, if looking, fails to see or heed traffic that is obvious and in dangerous proximity and continues on into its path, he is guilty of negligence as a matter of law. Hopson v. Goolsby, 196 Va. 832, 839 (1995) (quoting Hooker v. Hancock, 188 Va. 345, 356 (1948)). If looking discloses approaching traffic, then the right to proceed is to be tested by whether a person of ordinary prudence would attempt it. Hopson v. Goolsby, 188 Va. at 839. Carson v. LeBlanc, 245 Va. 135 (1996). Duty of Pedestrian Facts: Plaintiff, not utilizing a crosswalk and in the middle of the block, crossed half the street, looked right to see oncoming traffic, and then continued across the street. She was struck by defendant. Her traveling companions saw multiple vehicles approaching and declined to follow plaintiff across because of those vehicles. Key Holdings: When a pedestrian looks for approaching vehicles as she is crossing a street, she is presumed to have seen what she should have seen had her observance been careful and attentive. She cannot justify her conduct by saying that she looked and did not see the approaching vehicle that injured her when, if she had looked, she must have seen the vehicle. Unless there is some circumstance or condition to excuse her, the failure to see the vehicle constitutes negligence as a matter of law. Carson v. LeBlanc, 245 Va. 135, 140 (1996). McQuown v. Phaup, 172 Va. 419 (1939). Facts: Plaintiff struck by defendant s automobile when she crossed an intersection inside of a crosswalk. She stopped halfway across the street to look for drivers coming from the opposite way. When she determined they were not coming, she started forward again only to be struck by defendant. The issue was whether the pedestrian applied a proper lookout. Key Holdings: Plaintiff was not negligent in entering the intersection; she was not negligent in hesitating in the center of the avenue to watch the course of eastbound traffic on Broad Street. To ask that a pedestrian at a crossing in which she had the right of way look in every direction at once is to ask too much. McQuown v. Phaup, 172 Va. 419, 427 (1939). While a pedestrian can neither enter nor cross intersections regardless of approaching traffic, he has, under this section, the right-of-way, and this right, when not abused, must be upheld. Id. at 427. Whichard v. Nee, 194 Va. 83 (1952). Facts: Plaintiff walked across street, in the middle of the block and away from a crosswalk, after briefly looking for traffic. Plaintiff wrongly determined the closest car was two blocks away, and it collided with him as he entered the roadway. Issue became the contributory negligence of plaintiff, whether he was at fault for crossing the street at a crosswalk without looking for other vehicles.
The Journal of the Virginia Trial Lawyers Association, Volume 25 Number 3, 2015 43 Key Holdings: Not even at a street crossing, or intersection, where the pedestrian has a right-ofway, does he have the right to carelessly enter or cross the intersection regardless of approaching traffic. Whichard v. Nee, 194 Va. 83, 88 (1952). Moore v. Scott, 160 Va. 610 (1933). Facts: Plaintiff struck by car at an intersection without a marked crosswalk. The car was traveling down the street with one wheel in a streetcar s tracks. Issue of whether or not plaintiff adequately looked before crossing. Court found defendant achieved a speed of 60 miles per hour, which the Court concluded was reckless given the situation. Moore v. Scott, 160 Va. 610, 618 (1933). The plaintiff had the right to expect no such recklessness from the defendant in the intersection. Id. Key Holdings: The operator of a vehicle must exercise a greater degree of vigilance at an intersection because the pedestrian has the superior right there....the measure of ordinary care which the operator of a vehicle must exercise at an intersection is greater and higher than the care a pedestrian must exercise. Id. Right of Way: Basilotta v. Barker, 222 Va. 683 (1981). Facts: Plaintiff crossed the street at an intersection, inside a crosswalk, and with the streetlight in his favor. As he continued to cross the road, he observed defendant approaching at varied distances. While it was night, plaintiff began walking with the traffic light, and the defendant proceeded through the intersection and stuck plaintiff. Key Holdings: A pedestrian crossing with the traffic light in his favor has the right-of-way. This right-of-way continues if the light changes while the pedestrian is crossing, and it is the duty of the motorist to change his course, slow down, or come to a complete stop if necessary to permit the pedestrian to cross in safety. Basilotta v. Barker, 222 Va. 683, 685-86 (1981) (quoting Arney v. Bogstad, 199 Va. 460, 465 (1957)). VEPCO v. Blunt s Adm r, 158 Va. 421 (1932). Facts: The plaintiff was struck by small street car; alleged defendant did not keep proper lookout and did not give reasonable notice of the approach of its car. Plaintiff was crossing at an intersection inside of a crosswalk. There was testimony that the defendant streetcar operator looked back at a passenger right before the collision. The court equated a street car to an automobile when it held, if we give the right of way provisions of the statute and ordinances any meaning we are forced to conclude that the legislature and the city council in enacting such regulations intended to grant to a pedestrian at intersections a higher right, or a priority over all vehicles at the same intersection moving in a different direction. VEPCO v. Blunt s Adm r, 158 Va. 421, 433 (1932). Key Holdings: If a pedestrian must exercise the same care at the intersection as is required of him in crossing in the middle of the block in order to avoid a charge of contributory negligence when run down by a street car, then he has no right of way, but enters the intersection at his own peril just as he would do in entering any part of the street other than at an intersection. If the right of way means anything at all, it certainly puts the necessity of continuous observation and avoidance of injury on the motorman, when approaching a crossing, just as the necessity of the case puts a higher degree of vigilance upon the pedestrian at places other than intersections. Id. at 434. A pedestrian has the right to expect the motorman to comply with the law and yield the rightof-way to him. He further has the right to assume that if the speed of the car and his movements, if continued, would bring him in contact with the car, the motorman will slacken his speed or stop in order to avoid striking him because this is what the motorman is bound to do under the law. Id. at 433. What is a Crosswalk? Phillips v. Stewart, 207 Va. 214 (1966). Facts: Plaintiff was crossing a street at an intersection inside of a crosswalk, but the Walk and Don t Walk signals were not working. The defense alleged the injured plaintiff could not recover because the traffic control lights were not working at the time of the collision. Key Holdings: The large, white blocks painted on the street served to give adequate notice to motorists and pedestrians alike of the presence and purpose of the crosswalk. Va. Code 46.1-231 prescribes no method by which such a crosswalk should be clearly marked. Nor does the Code section require the installation of lights or signals [9] to make such a crosswalk effective. The operation of the light and signals at the crosswalk in question during business hours served only as an added precaution when vehicular and foot traffic were heaviest. Phillips v. Stewart, 207 Va. 214, 218 (1966). Estate of Moses v. Southwestern Va. Transit Mgmt. Co., 273 Va. 672 (2007). Facts: Plaintiff struck by defendant driver as he crossed a street several hundred feet outside of a crosswalk and an intersection. The defense moved for a jury instruction on contributory negligence. Key Holdings: Thus, while the violation of a statute regulating traffic constitutes negligence, it does not necessarily follow that such negligence will as a matter of law prevent a recovery by the plaintiff. There must be a causal connection between the violation of the statute and the injury, otherwise the violation is immaterial; and unless it is shown that the plaintiff s violation was a proximate or concurring cause which contributed directly to his injury, he is not thereby barred from a recovery. Estate of Moses v. Southwestern Va. Transit Mgmt.
44 The Journal of the Virginia Trial Lawyers Association, Volume 25 Number 3, 2015 Co., 273 Va. 672, 679 (2007) (quoting Powell v. Virginian Railway Co., 187 Va. 384, 390 (1948)). Child Dart Out Grant v. Mays, 204 Va. 41 (1963). Facts: 14-year-old plaintiff struck by an automobile while riding on the street. The child attempted to evade but the defendant collided with the back wheel of the child s bicycle. Key Holdings: A child under 7 is conclusively presumed to be incapable of contributory negligence. Grant v. Mays, 204 Va. 41, 44 (1963). Children between the ages of 7 and 14 are presumed to be incapable of exercising care and caution for their own safety, and this presumption prevails unless rebutted by sufficient proof to the contrary. Id. A Richmond native, Penn earned his J.D. from the University of Richmond s School of Law, where he served on the Journal of Law in the Public Interest. Upon graduation, he joined a general practice firm litigating a wide range of legal matters. In 2006, Penn joined Marks & Harrison and has focused his practice on personal injury since that time. Penn has authored several articles on a wide array of civil litigation and personal injury issues and has spoken at legal education seminars on the fundamentals of trial preparation. Gabbard v. Knight, 202 Va. 40 (1960). Facts: A 20-month-old girl was struck by defendant s automobile while attempting to cross the street. Defendant testified that he knew there were children around the area. Key Holding: We have many times pointed out that the duty and liability of the driver of an automobile to adults and children are measured by different standards. Ordinary care toward an adult under certain circumstances might be gross negligence toward a child under the same conditions. The driver must increase his exertions in order to avoid danger to children whom he may see, or by the exercise of reasonable care should see, on or near the highway. Gabbard v. Knight, 202 Va. 40, 46 (1960). Conclusion Though they share many similarities, pedestrian cases are unique from auto vs. auto collision cases. This article is not exhaustive but should give the practitioner a refresher or starting point when undertaking their next pedestrian case. Endnotes 1. Department of Motor Vehicles Virginia Highway Safety Office 2012 Virginia Traffic Crash Facts at 30. 2. Id. at 47 3. Id. at 39 4. The National Oceanic & Atmospheric Administration maintains a sun calculator here: http://www.esrl.noaa. gov/gmd/grad/solcalc/