Could oblivious jaywalker collect if struck by vehicle?

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Dear John,

I read a recent article about a growing scourge of distracted walkers, those people who don't pay attention to what's going on around them because they're addicted to their cell phones.

The next day I experienced a near tragedy when I was driving down a residential street and a woman pushing her baby stroller stepped out in front of me mid-block between parked cars to cross. She was on her cell phone and never looked to see if any vehicles were coming.

Fortunately I saw her and was able to stop before hitting her and her baby, but I think she was oblivious that I was even there because she never once took evasive action or looked in my direction.

I know I would be criminally liable as a driver if I hit her and that she could sue for damages. And I also suspect that my insurance premiums would rise astronomically.

But could she face any criminal or civil counter-claim on account of her obliviousness?

Sincerely,

Alert Driver

Dear Alert,

I am relieved to hear that your swift reflexes and awareness avoided tragedy. As an avid perambulator myself, I am grateful for drivers who are alert enough to protect pedestrians from their own folly.

Each situation is different and often the facts dictate the outcome. Therefore, I encourage anyone in similar circumstances to seek legal advice from an attorney trained and experienced in evaluating accidents and liability.

In the past, a plaintiff who was even partially responsible for causing his own injury was barred from getting recovery for damages. This changed about 40 years ago when Washington adopted a comparative negligence statute. The term was later changed to "comparative fault" because the word "fault" includes a greater variety of behavior.

In determining whether a person was contributorily negligent, the inquiry is whether that person exercised the care for his or her own safety that a reasonable person would have used under the existing facts or circumstances.

To the extent that the person did not exercise care, the amount awarded will be reduced. The amount of the deduction is based upon the percentage of the fault of the plaintiff and is often highly contested.

While you may say that she is entirely at fault because she was jaywalking, that is not necessarily the case. The law does bar recovery when an accident occurs while committing a felony.

I suppose this means that if she were fleeing from a bank robbery and had a stroller full of loot you would be off the hook if you ran her over. Unfortunately for your situation, jaywalking is not a felony and would not bar recovery. Some think jaywalking is an art form.

There are many other issues that go beyond the ability to discuss in this article: assumption of risk, mitigation of damages and proximate cause, to name a few. You also raise the notion of criminal charges, which could be a discussion of its own.

My intent is to tell you that it is possible that someone you injure may be held responsible for their role in the accident. Certainly, this does not mean that you can drive with a blindfold on, however tempting that may be.

Happy motoring,

John

John Hartzell is a practicing Walla Walla attorney. No attorney-client relationship is established via this column, which is for educational purposes only and is not intended as legal advice. Any information given is to illustrate basic legal concepts and does not state how any court would decide any matter. Have a question? Ask John at askjohn@wwub.com.

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