A roaring, 2,000-pound mass of steel careens into human flesh. The victim is jaywalking; the driver is both speeding and texting. Who is at fault?
In four states, it’s not the driver. Virginia, where Mobility Lab is located; Maryland, where I live; Alabama; and North Carolina all maintain a doctrine of contributory negligence. This means that “if the pedestrian is even 1 percent negligent, even though the driver is 99 percent negligent, then it is . . . impossible to recover” damages, bike lawyer Bruce Deming explained to me.
It’s time for these four states to adopt a legal standard fairer to people walking and biking. Forty-six states have already done so, with many moving to a system of comparative negligence, in which liability is based on how much the victim and driver are judged to be at fault. So, if a driver is judged 80 percent at fault, they would pay 80 percent of damages, or if 20 percent they would pay 20 percent.
With deaths of people walking and biking rising, even comparative negligence may not be enough. Better still would be a standard where the driver—in control of a large and dangerous piece of machinery — is responsible for damages if he or she is even partially at fault.
Given that many states and localities have adopted Vision Zero, it’s strange that four states are holding out. With streets designed for cars, it is likely that all of us will “jaywalk” at some time or other, leaving us vulnerable to the most reckless of drivers. For Deming, “the fact that 46 states have done away with” contributory negligence shows it to be “a harsh, punitive doctrine that has no place in American law.”
Making matters worse, in a crash, it’s often difficult to determine who’s at fault. According to the law firm Gilman and Bedigian, “many drivers may not take responsibility for their actions.” Some “may try and blame the pedestrian.”
In states where pedestrians must prove that the driver is solely at fault, dangerous drivers will often get off scot-free. Crash details can also be unclear, with a stunned (or dead) person unable to explain what happened. As a story in Wired points out, we often hear only the driver’s side of the story.
Given this uncertainty; given that driving is a privilege, not a right; and with more deaths of people walking and biking, states must prioritize the safety of people walking over cars. Much of Europe has already done so, adopting strict liability that leaves it up to the driver to prove negligence on the pedestrian’s part, since “the drivers of faster, heavier vehicles have a duty of care.” France, for instance, imposes liabilities “totally independent from the driver’s fault or negligence.”
With governments striving to reduce congestion and local pollution, it makes no sense to maintain an archaic system that prioritizes cars. Hundreds of people are killed by drivers every day, yet no one ever got killed being hit by a pedestrian. Driving, not walking, puts others at risk; it should be up to the drivers to assume responsibility for the damage they cause.
Check out our infographic on contributory negligence and comparative negligence in the United States!