On Saturday night, a Charlotte woman was seriously injured after being struck by a white Jeep Cherokee while crossing the street at the intersection of Albemarle Road and Sharon Amity Road. The driver of the car did not stop. According to CMPD, the woman was crossing the street outside of a crosswalk. We generally think that pedestrians have the right of way, but does the fact that this woman was crossing the street outside of the crosswalk affect her ability to collect damages?
North Carolina G.S. 20-155(c) states that
The driver of any vehicle upon a highway within a business or residence district shall yield the right-of-way to a pedestrian crossing such highway within any clearly marked crosswalk, or any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block, except at intersections where the movement of traffic is being regulated by traffic officers or traffic direction devices.
So under north carolina law, a pedestrian does not need to be in a marked crosswalk to have the right of way. At an intersection where traffic is not being regulated by traffic officers or devices, there are imaginary boundary lines connecting adjacent sidewalks in which a pedestrian has the right of way.
But we know that the intersection of Albemarle Road and Sharon Amity Road is a big one. There are marked crosswalks, and most likely pedestrian crossing signals, so we’ll assume that the report that the woman was outside of the crosswalk means that she did not have the right of way.
In North Carolina, a plaintiff can be barred from collecting damages from a negligent defendant if that plaintiff is found to be contributorily negligent. According to North Carolina law, “A plaintiff is contributorily negligent when he fails to exercise such care as an ordinarily prudent person would exercise under the circumstances in order to avoid injury.” The doctrine of contributory negligence requires a victim to use reasonable care as a pedestrian. In order for contributory negligence to keep a victim from receiving damages, the victim’s negligent behavior must be a proximate cause of the accident and contribute to the plaintiff’s injury.
Negligence cases tend to be fairly fact specific. In the North Carolina case Womack v. Stephens, a pedestrian was found to be contributorily negligent when she had consumed “alcohol, was crossing outside a marked crosswalk at night, in an area that was dimly lit, dressed in dark clothing, with the lanes of oncoming traffic unobstructed and plaintiff's headlights shining, and never looked toward the oncoming vehicles despite the imminent present of two vehicles coming upon her.” We have no facts from the Saturday night accident to indicate that even some of the conditions present in Womack v. Stephens existed in this case, aside from the fact that she was crossing outside of a crosswalk.
The Court of Appeals goes on to state in Womack v. Stephens that “The courts of this State have, on numerous occasions, applied the foregoing standard of due care when the plaintiff was struck by a vehicle while crossing a road at night outside a crosswalk. If the road is straight, visibility unobstructed, the weather clear, and the headlights of the vehicle in use, a plaintiff's failure to see and avoid defendant's vehicle will consistently be deemed contributory negligence as a matter of law. “ This means that a reasonable plaintiff exercising due care would generally see the headlights of an oncoming car and not cross the street. Albemarle Road is a straight road, and on a clear night, a car’s headlights should be visible from a distance. However, it was raining on Saturday night at the time of the accident, and it is possible that the weather or another factor might have made it difficult for the pedestrian to see the oncoming car.
Assuming that the victim pedestrian injured in Saturday night’s accident is contributorily negligent, is she barred from collecting damages? The doctrine of contributory negligence has a few exceptions, two of which could be applicable in this case. They are the last clear chance doctrine and gross negligence.
In applying the last clear chance doctrine, the North Carolina Supreme Court has set forth specific elements which must be met in the case where a contributorily negligent pedestrian is injured by a motor vehicle.
Where an injured pedestrian who has been guilty of contributory negligence invokes the last clear chance or discovered peril doctrine against the driver of a motor vehicle which struck and injured him, he must establish these four elements: (1) That the pedestrian negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care; (2) that the motorist knew, or by the exercise of reasonable care could have discovered, the pedestrian's perilous position and his incapacity to escape from it before the endangered pedestrian suffered injury at his hands; (3) that the motorist had the time and means to avoid injury to the endangered pedestrian by the exercise of reasonable care after he discovered, or should have discovered, the pedestrian's perilous position and his incapacity to escape from it; and (4) that the motorist negligently failed to use the available time and means to avoid injury to the endangered pedestrian, and for that reason struck and injured him.
The application of the last clear chance doctrine is very fact specific. It is certainly possible that the driver of the Jeep should have seen the pedestrian’s perilous position and had time to avoid the injury, but we don’t know all of the facts involved.
Another exception to the doctrine of contributory negligence is where the conduct of the defendant is “willful or wanton” or grossly negligent. A North Carolina case dealing with the issue of gross negligence in a motor vehicle case seemed to limit it to instances showing evidence of “racing, excessive speed, intoxication, or any combination thereof.” We don’t have specific evidence from the Saturday night accident to show that any of these factors existed. However, because the driver of the Jeep did not stop at the scene of the accident, it is possible that the driver was breaking the law by driving while impaired or excessively speeding. If this occurred, then the driver would be grossly negligent and the pedestrian’s potential contributory negligence would not bar her from recovering damages.
There are currently few facts about Saturday night’s hit and run pedestrian accident. But it is clear that pedestrians are no match for a car, no matter who is negligent, and we hope for the best for the pedestrian injured on Saturday.