A drunk man crosses the street in dark clothes, in the middle of the night, is hit by a car, and at trial is awarded $400,000.
Why did a judge award $400,000 to a person crossing the street (not at a crosswalk), while intoxicated, in the dark, and wearing dark clothing?
The driver was driving on the highway at 60 miles per hour and claimed she never saw the pedestrian until after she hit him. She gave this statement to the police and to her insurance company immediately after the accident.
At first glance, it may seem to be the pedestrian’s fault for all the above reasons, however, as was argued at trial, a driver has a duty to always be paying attention to the road in front of her. If a driver does not see a 6-foot 2-inches drunk man in the middle of the street in front of her, then she is primarily at fault and the cause of the accident. This commonsense, albeit not necessarily intuitive, rule has been memorialized by the Pennsylvania Supreme Court in the matter of Carney vs. SEPTA, where it stated, “a wrongdoer may not avoid liability by saying he did not see what was plainly visible to him.”
Furthermore, the court has gone so far as to say that a driver who does not see a pedestrian is negligent per se. In another case, Kmetz v Lochiatto, the court wrote, “If [defendant] did not see him, only one conclusion is possible, and that is that he was not looking. Not looking while operating an engine which can crash, mangle and cripple all before it is negligence per se.”
If you are a pedestrian who has been hit by a car, you may have more rights than you realize. Automobiles are two-ton dangerous machines that all drivers in the state of Pennsylvania have a responsibility to operate carefully. At a bare minimum this means that drivers need to be paying attention. Drivers have a duty to be on the lookout for pedestrians, other drivers, accidents, bicyclists, motorcyclists, and small children. The “they came out of nowhere” defense is no defense. People don’t come out of nowhere and the law intelligently supports this line of thought.
In this matter, both the driver’s insurance company as well as the pedestrian’s insurance company believed that this accident was the pedestrian’s fault because he was intoxicated and not crossing at a crosswalk. They were wrong. After listening to all the testimony, the judge agreed that the driver was far more responsible for this accident than the pedestrian. The pedestrian was sideswiped by this vehicle with her mirror, causing life-changing injuries including a fractured ankle and leg.
At trial, the driver presented two expert reports, one to show that the pedestrian was intoxicated and another from an engineer purporting to show why this accident was not the driver’s fault. But, we at ThePhillyLawyers argued that the entire engineer hypothesis was based on the driver having been paying attention, and that, in fact, the report supported the pedestrian’s statement that by the time he saw the car barreling towards him, he had no time to react. The driver’s statement that she did not see the pedestrian and only heard the car hitting something, refuted the argument that she was paying attention. The judge appropriately disregarded this expert report and the pedestrian was awarded $400,000.
