road safety snafus
December 7, 2012 7:17 AM   Subscribe

I have been driving a lot more these days and have come across rather curious situations on the road, involving pedestrians and abandoned / malfunctioning vehicles. Wondering who would be at fault if something were to happen.

All of these situations occurred at night / before dawn, so darkness factors into each scenario. Also, I am in the USA and hence curious as to who American law would claim is responsible.

1) Car with no back lights, ie no brake lights nor no regular lights, on a normal 2-lane road (ie, 2 lanes going in either direction). Speed limit 35 mph, although people often go as fast as 50 mph. If someone were to rear-end such a car, who would be at fault? Rear-ender could claim not to see car before it was too late; rear-endee could claim reckless driving.

2) Pedestrian walking on the side of the road. IIRC said pedestrian is not wearing reflective clothing. There's no sidewalk to be seen, no open lot to the side, not even a shoulder. This is not your normal public road -- it's the spur leading from downtown to the interstate, and this particular section of it is a bridge crossing a busy city road. Speed limit 55 mph, people usually drive upwards of 60 mph. Do pedestrians even belong on such a road? Do they have the right of way, no matter the road? If they are hit, whose fault is it?

3) City 2-lane road with median. Speed limit 35 mph, most drive 50 mph. Vehicle parked -- not stalled -- in the median. Apparently abandoned for the time being, as no person is in sight. Also, no lights are on. Granted, perhaps the vehicle or the driver had a problem / emergency and needed to stop the car in an instant and look for help, but without the lights on nobody would know it is there until too late. So if the car is hit, whose fault is it?

4) Open country road, 2 lanes, semi-rural. Posted speed limit 35 mph, most drive 40-45 mph. No city pole lights in immediate area. Pedestrian crossing the street, not wearing reflective clothing. My impression was that he took a glance at oncoming traffic and thought, "If I hurry up I can make it across." If he is hit, who is at fault?
posted by ditto75 to Law & Government (22 answers total) 3 users marked this as a favorite
Read up on contributory negligence and ponder the wisdom of exceeding the posted speed limits.
posted by flabdablet at 7:29 AM on December 7, 2012 [2 favorites]

I am not a lawyer. I live in Seattle.

I don't know about (2), but I'd think you're at fault for all of them.

It doesn't matter what speed people really go at. The posted is the maximum. And it's only that if in optimal conditions, so if you have trouble seeing enough to stop in time, then you should drive slower. Otherwise it's reckless driving.

If it's dark, and they're not shining (with lights or reflective gear), you still have working headlights. And high lights. (Or you should, according to law.) And you should be paying enough attention to see them.

The car with the missing lights and the abandoned cars are technically doing things that are illegal and they can get towed or ticketed and fined. But you're still at fault if you have an accident with them.
posted by ethidda at 7:32 AM on December 7, 2012

Do you want specific answers for the state you are residing in, a general answer covering the majority of US states, or answers on a state-by-state basis? The issue of fault is dependent on the laws of each state.
posted by muddgirl at 7:33 AM on December 7, 2012

Response by poster: I included speed limits and actual driving speeds to give a clearer picture of each scenario.

Let's assume that the driver in each scenario is driving within posted limits, then.

ethidda-- even though the pedestrian was walking on the road of a highway spur? Such roads were not designed for pedestrians, otherwise they would have sidewalks...right?

muddgirl-- A general answer for the majority of US states would suffice.
posted by ditto75 at 7:36 AM on December 7, 2012

IANAL, but here is my understanding:

For #1 and #3, if a person is driving fast enough that they cannot see an obstacle in the road until it is too late to avoid hitting it—regardless of whether the obstacle is natural (e.g., a large tree branch which has fallen onto the road) or man-made—then the person is driving too fast. A speed limit generally describes the upper legal limit in good conditions, but doesn't mean it's legal to drive that speed in all conditions. My understanding is that states generally have a clause that prohibits driving at unsafe speeds for the conditions, even when that speed is within the posted speed limit. Even if the posted speed limit is 35mph, it may still be illegal to drive at 35mph in case of slick roads, fog, or darkness.

When the driver of a moving vehicle hits a stationary object, the driver is almost always at fault, even if the stationary object shouldn't be where it is. When one car rear-ends another, the rear-ender is almost always at fault. I don't believe #1 or #3 would constitute an exception to these.

#2 - Interstates, including on and off ramps, generally prohibit pedestrian traffic. I don't know whether that would be sufficient to exonerate the driver, however.

#4 - I suspect this would depend on the exact circumstances. If the pedestrian stepped out while the car was far enough away that an alert driver driving the speed limit (and at a safe speed for conditions) could have stopped, the driver would likely be at fault. If the pedestrian jumped out right in front of the car in a way that no reasonable driver could have stopped, probably not.

Regarding driving faster than the posted limit, "a lot of other people break this law too" is generally not considered a valid defense for breaking a law.
posted by DevilsAdvocate at 7:39 AM on December 7, 2012 [2 favorites]

A lot of times it depends on the responding police officer—I've seen some of these situations and the blame switched just because the officer's opinion. Of course, no matter who the officer tickets, the person that receives the "blame" can always have their day in court and the ticket might end up getting thrown out.

But basically, I agree with Devils Advocate for #1 and #3: even if these things aren't properly marked (and even if they can't prove you were speeding), the onus is still on you to be watching for things in your path. If you fail to notice it, you could at least be cited for "care required". But again, it depends on the attitude of the responding officer if (s)he thinks the situation was truly unavoidable or not.

At least in my state, our law is that "the pedestrian always has the right-of-way". So that's not going to look good in your favor, regardless of the time of day or what they were wearing. I know of some situations where a person was hit and it was decided the driver was not at fault (e.g., a man was walking along a dark road at night—very similar to your case #2—and was struck and killed by a pick-up. It was determined the man walking was very drunk (I have no idea if he stumbled into the road or what other mitigating factors there were). But there ended up being no charges on the driver.)
posted by Eicats at 7:47 AM on December 7, 2012

For #4, there have been cases where the driver was exhonerated based on the fact that they could not stop in time, but I don't know whether the pedestrian would be held "at fault", considering they would probably be killed if they stepped out so that the driver did not have time to stop.
posted by muddgirl at 7:55 AM on December 7, 2012

The party with the deeper pockets (or better insurance) is always at risk no matter who is at fault.
posted by spitbull at 8:07 AM on December 7, 2012 [1 favorite]

In Missouri the basic traffic law for motorists is:
304.012. Highest Degree of Care. Every person operating a motor vehicle on the roads and highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care.
Every state has a similar law. This basically puts the onus on the motor vehicle operator to operate safely regardless of all other circumstances.

The onus is put on the vehicle's operator because of the recognition that driving a large, heavy vehicle at a high rate of speed is an inherently dangerous activity. Therefore, the primary responsibility for mitigating that danger is on the vehicle's operator.

In many of the situations you outline, another person is doing something illegal or just plain stupid. Nevertheless, the onus is on the vehicle driver to avoid hitting them, despite the illegality or stupidity of their actions. As a driver, start operating under the assumption that other people are going to do illegal and stupid things and act proactively to mitigate and avoid the damage (that's the basic philosophy underlying 'defensive driving').

Imagine all of your scenarios without high-speed motor vehicle traffic involved. None of them is dangerous in the slightest. That's why the onus is on the operator of the high-speed, heavy vehicle--because the kinetic energy from that vehicle, which becomes higher in proportion to the vehicle's mass and in proportion to the square of its velocity, is ultimately the source of the danger and of whatever damage that vehicle does.
posted by flug at 8:28 AM on December 7, 2012 [4 favorites]

I live in a rural area where one of the bigger threats is moose/deer in the road and the rule of thumb is "Don't outdrive your headlights" That is, do not drive faster than you could reasonably stop your car if you saw something at the edge of your headlights, because the damage to your car is you hit a moose is something best avoided. So, to all of your scenarios (and keeping in mind spitbull's note that you're always at risk even if you are not at fault) here is how I would deal with these scenarios

1. call the cops - a car with no taillights after dark is a dangerous situation. There might be some sort of split fault assessment but this is up to the insurance companies, not the legal structure. I would always assume that a car driving at night with no taillights was possibly being driven with someone without insurance anyhow, so I'd be super careful.
2. Unless there are posted signs (like on some interstates, mostly to discourage hitchhiking and encourage safety), pedestrians are "allowed" to be on the side of the road and it's your responsibility not to hit them, period.
3. Your fault.
4. See #2, it is your responsibility to not hit pedestrians. That said, I've seen actual situations here where someone darted out into the road from between parked cars and the person who hit them was not charged with a crime, so while the ethical answers is "don't hit pedestrians" the actual answer to "What will happen" is "it depends."

So, to stress, the determination of "fault" is an insurance thing. Whether you are charged with a moving violation is a legal thing. These things may overlap but most of the time there is some human part of the entire situation that will take into account some but probably not all of the criteria you have indicated. Vehicles break down on the side of the road, people cross the street, people drive with malfunctioning equipment (on purpose or by accident) and people walk down the side of the road wearing whatever they want (absence of sidewalks does not in any way indicate any sort of legal status of pedestrians, fyi). I too am sometimes stressed out by this but it's better driving practice to drive defensively and presume that if you hit something, it's your fault unless proven otherwise.
posted by jessamyn at 8:42 AM on December 7, 2012 [4 favorites]

Response by poster: Devilsadvocate-- Interstates, including on and off ramps, generally prohibit pedestrian traffic.

jessamyn-- Unless there are posted signs (like on some interstates, mostly to discourage hitchhiking and encourage safety), pedestrians are "allowed" to be on the side of the road

Do states have different laws regarding pedestrians on highways / interstates? I would imagine that since we're talking about interstate highways, which I assume are run on a federal / national level (interstate after all) that there would just be a standard set of rules about them issued from the DOT.
posted by ditto75 at 1:22 PM on December 7, 2012

Here's the Federal Highway Administration's Legislation and Guidelines page for pedestrian safety. You can read the applicable code of federal regulations here if you want to. Notable point is this
Sec. 630.1006 Policy. It is the policy of the Federal Highway Administration that each highway agency shall develop and implement procedures consonant with the requirements of this regulation that will assure the safety of motorists, pedestrians, and construction workers on Federal-aid highway construction projects. The procedures shall be consistent with the provisions of the MUTCD. Highway agencies should be encouraged t implement these procedures for non-Federal-aid projects and maintenance operations as well.
In short, the only way the feds can shape the process is through making conditions on the granting of federal highway funds (which I think is why there was a national speed limit for a while and maybe even a national drinking age)

The rules are enforced by local law enforcement and are actually handled legislatively on a state by state basis to the best of my knowledge. You can Google "pedestrian laws" and the state that you are interested in to find specifics of each state. Here's an article about Interstate highways and pedestrian fatalities which has a lot of good data, though it is well out of date. At the time the article was written 25 states had posted signs at all entrances to the interstate (in text, not graphics) limiting access. Most of the fatalities seem to be people who got on the interstate legally and then had vehicle trouble. The conclusion of that author
Since almost a third of Interstate pedestrian fatalities involved people with mechanical trouble or people who had been in a crash, the author suggested that drivers prepare themselves for situations in which they may be "unintended pedestrians." He recommended carrying reflective clothing and equipment to make yourself visible to other motorists. He also advised that instead of parking on the shoulder and trying to fix a problem, drivers should, when possible, leave the roadway.
More recently digihitch has this forum post talking about states that seem to allow pedestrians along the majority of their highway systems. This is an outdated summary of what the laws are state by state. You can see this list of US Interstate Highway Standards (nb, Wikipedia) that it's all about construction and not about legislation.
posted by jessamyn at 1:45 PM on December 7, 2012 [1 favorite]

If they are hit, whose fault is it?

I am not a lawyer, but I've read a bit about this, and I think in most cases you as the driver would be at least partly at fault if something were to happen in a situation like No. 2 or No. 4, except in the unlikely scenario that you'd have a nearby witness who could definitively say that the pedestrian wantonly and irresponsibly threw themselves in front of your car. And even if that were the case, your statement, any police officers' or medics' statements or reports, the pedestrian's statement, and an assessment of the damage done to the pedestrian or your car would all come into play as well.

Your best-case scenario—depending on the laws in your state, the conditions along that stretch of roadway at the time you were driving, and the exact nature of the pedestrian's and your behavior—would probably be a 50 percent assessment of fault to you as the driver and a 50 percent assessment of fault to the pedestrian for reckless or negligent behavior. But an assessment of shared fault isn't allowed in all states, and even once fault is determined, compensation for an incident like this can take months for the attorneys and insurance companies to negotiate; a simple answer to the question "Whose fault is it?" won't save you from going through that.

The real questions you want to be considering:

1. What are the laws in your state and jurisdiction regarding the assessment of fault in auto accidents? Does your state allow for an assessment of shared fault? See also.

2. What are your personal habits: Do you use your headlights and turn signals at all relevant times and drive carefully at night? Do you drive the speed limit? If something were to happen at any given time, would you be able to say you took the necessary precautions?

3. What are your insurance coverages, and how good will your claims representative be at negotiating with the pedestrian's attorney and/or insurance company on your behalf?

Long story short, there is no snap-your-fingers way out of situations like these, and you want to do anything within your power to avoid them, even if it means driving like a granny at night in certain areas.
posted by limeonaire at 2:55 PM on December 7, 2012

People are walking/biking all over the place on the highways in northern California off 101. Do that in SF or Sacramento and you might end up on a 72 hour hold in a mental facility.

Laws, or more importantly, police tolerance change even within states.
posted by couchdive at 5:01 PM on December 7, 2012

You do realize that in many accidents BOTH or MULTIPLE drivers can be cited, right? The police don't assign "blame"; they ticket based on violations of the traffic laws. In my community traffic accidents are in the paper as a police report, and it is very common for Driver A to be cited for exceeding safe speed while Driver B is cited for having a broken tail light or blowing a stop sign. As the involved number of cars approaches three, the probability that in this mix there is someone with a suspended or revoked driver's license seems to approach 100% (but that's my confirmation bias talking).

Fault, on the other hand, is a concept of interest to your insurance company. But fault is not necessarily absolute, either (contributory negligence). Friends of mine were in a taxi that was in an accident. The other driver was uninsured, so even though it was probable that other car had run a red light, the taxi company's insurance ended up covering their medical costs.

As a bicyclist I often encounter drivers who have the attitude that "bikes should be on the sidewalk" or some such. But I am a legal user of the road, too, and it's their responsibility to make sure they don't hit me. Pedestrians and bicycles were on the roads before the automobile was invented, and in rural areas without sidewalks, well, where do you expect them to be? The one caveat is that generally the law requires them to walk against traffic, that is, "on the left" facing you. Bikes are wheeled and should be riding with traffic. Sometimes you may find other users of the road such as tractors or farm animals. Still your responsibility to watch out for them.

Flug mentions "defensive driving". You should consider this at length, because it basically teaches you to act as though every other driver on the road is likely to do something stupid, crazy, or otherwise unpredictable at any time (as in this driving in Russia video that's circulating today).
posted by dhartung at 5:32 PM on December 7, 2012 [2 favorites]

1. I believe it's the law that vehicles have functioning tail lights and brake lights. That said, rear ending accidents are weird. But yes, it is really really bad and dangerous if you have no lights back there.

2. Pedestrians have the right of way. It is the responsibility of all drivers to drive slowly enough and maintain enough control of their vehicle that they are not in danger of hitting pedestrians. Regardless of what said pedestrians are wearing. I myself have had a couple of scary moments where a pedestrian wearing dark colors came out of nowhere, which has always reminded me to drive carefully and be observant, not to remark that pedestrians should wear reflective vests or refrain from existing or whatever.

3. My understanding is that the driver of a vehicle in a side-of-the-road emergency is supposed to use their hazard lights in this situation. That said, failure to use hazard lights doesn't mean it's perfectly OK to side swipe a car that is somewhere it wouldn't normally be. Again, this is where it's important to drive safely and be observant. Incidentally, this and many of your other examples are part of why speed limits exist. Drivers need to be moving at speeds that allow them to react to unpredictable situations.

4. Yes, pedestrians have the right of way. I personally won't cross until I'm sure it's safe, but regardless, that doesn't open me up for liability if a car comes speeding out of nowhere.

Additional: in many if not all of these situations, a driver who gets into an accident (especially hitting a pedestrian!) who may have caused the accident by speeding is almost certainly liable on some level.
posted by Sara C. at 8:28 PM on December 7, 2012

Most states these days use comparative negligence which allows parties to share the fault. So, hypothetically, if party A is speeding and rear ends party B, but party B is hard to see because he is driving at night with his lights off the jury could decide that A is say, 75% responsible and B is 25% responsible (and damages will be allocated accordingly).

A few states still use contributory negligence, which is a total defense - if the plaintiff (the one who is suing) contributed to the accident, the defendant is not liable for any damages.
posted by insectosaurus at 7:22 AM on December 8, 2012

Response by poster: Thanks everybody for the responses so far.

In regards to #2, I never would have thought that pedestrians would have the right of way on a highway -- I would think that if the road was intended for pedestrian traffic, a sidewalk would have been constructed along with the bridge / overpass in question.

And besides, it would just make common sense to avoid walking down the road where people drive at speeds greater than 50 mph.

And as to #3, I had assumed that the median lane was not created for people to park their cars, but then in an emergency I guess you just have to leave your car wherever you can.

Thanks for helping me clear this all up!
posted by ditto75 at 10:28 AM on December 8, 2012

it would just make common sense to avoid walking down the road where people drive at speeds greater than 50 mph.

What if you run out of gas or have car trouble? Are you supposed to just stop existing? Stay in your vehicle and hope someone stops to check on you? Just move there and live on the side of the road in a car it would be unsafe to get out of?
posted by Sara C. at 12:16 PM on December 8, 2012

All I can say, ditto75, is you must not have ever lived in the country. I live in a city with country just outside, and even I was surprised once when visiting family friends in a more rural area. I went to a school thing with the friend who was my age, and she said we didn't need a ride, as we could walk home. It turned out to be almost (checks GEarth) 4 miles! All along dark, empty, two-lane roads (today they're actually fairly suburban, though), in the country, with no sidewalks.

Where common sense comes in is that you walk facing traffic. You see the car, the car sees you, and if the car doesn't see you at least you can jump to the side instead of getting knocked over from behind. Back then it wasn't even thought of, but nowadays having some kind of reflective gear is also common sense -- even a "bright" blue coat, for example, can seem invisible in the dark.

Also, as a cyclist, I really hope that more drivers would simply be aware that cars aren't the only thing on the road. In the UK they have a saying, "Sorry Mate, I Didn't See You" (SMIDSY), which is what drivers invariably say when they hit bikes. Across much of the US that's basically a catch-all excuse that shields virtually all auto drivers from prosecution even if they kill a cyclist. Yet it happens in broad daylight on wide-open roads, because many drivers simply haven't been trained to use their peripheral vision. One thing that Wisconsin is doing is adding an extra couple of feet to the blacktop of state road projects, which gives just enough room for a bike on the right side of the white line.

I'm not attacking you specifically -- you're just exhibiting a sense of auto and car entitlement to the roads that is very, very common in this country. The roads may well primarily serve cars, but not at all exclusively. There are people that like to use them for other purposes, or because they just don't have cars. Only certain types of highway, as noted above, specifically exclude pedestrian and bicycle use.
posted by dhartung at 1:54 PM on December 8, 2012

I never would have thought that pedestrians would have the right of way on a highway

Nobody ever has the right of way anywhere.

The fact that there are lots of circumstances where drivers have a legal obligation to give way does not confer any such right on those to whom way is given.

The overarching responsibility on all road users is to act in such a way as to avoid collisions. If you notice that some other road user has failed to give way to you when the law says they should have done, and you then act as if you had the right of way instead of doing everything within your power to avoid the impending collision, you're breaking the law.
posted by flabdablet at 7:20 PM on December 8, 2012

Former commercial auto insurance adjuster here, licensed in all Western states including Alaska & Hawaii, plus Louisiana, Florida and a few others I forgot.

1: Following driver is at fault. If you can't see stuff in front of you, especially stuff traveling in the same direction, you're going too fast for conditions.

2: There are signs saying you can't walk on the interstate; however, people break down on the interstate all the time and have to walk to the exit. If you can't avoid hitting them, you are going too fast for conditions and failing to control your vehicle.

3: Is the car in a raised median, or merely a same-level, painted median? Is there a center turn lane? Regardless, if you can't see something stationary in front of you, you are going too fast for conditions. This condition is known as "Parked Unoccupied" and applies whether the parking is legal or illegal - the moving vehicle is always at fault.

4: Sometimes pedestrians have to accept contributory negligence for getting hit, because they are not predictable stationary objects. Agree with multiple responses upthread who noted you don't "have" the right of way; you "yield" the right of way.

Best part of this job - buying hot wheels cars (and tractor trailers, cement mixers, freight trains and garbage trucks) and re-enacting wrecks ;-)
posted by toodleydoodley at 9:04 PM on December 8, 2012 [2 favorites]

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