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Tony Stewart Hits and Kills Driver

The Charlotte Observer, and various other news outlets, have reported about an incident which occurred on Saturday night and involved a car driven by Tony Stewart hitting and killing another driver, Kevin Ward, Jr., who was standing on the track. There has been some speculation about the details of the accident and an investigation is underway. The facts that have been reported, as well as video footage posted online, show Stewart bumping Ward’s car while racing in a turn on the dirt track. Ward’s car spun and hit the wall. The race was placed under caution. Ward got out of his car and walked toward the cars that were coming back around the track, appearing to gesture at Stewart’s car. As Stewart’s car approached, it appeared to speed up. The right side of Stewart’s car struck Ward, dragged him for a short distance and left him lying down on the track. Ward was taken to the hospital, where he was pronounced dead.

Stewart’s spokesman has called the incident a tragic accident, and, indeed it is. However, it raises the issue of what happens when a pedestrian is injured, not because he fails to see a car approaching, but because he deliberately approaches the car coming towards him. Let’s take the fact scenario outside of a race track, since that venue brings up other side issues which probably include an indemnity agreement signed by the participants, as well as the inherent dangers in race car driving.

Let’s suppose instead that on one rainy evening, two friends, Sam and Bob, go out to dinner together, during which time they get into an argument. Sam becomes so mad that he storms out of the restaurant, walks down the sidewalk to where he has parked his car in the street and gets in his car to drive away. Bob is not going to let Sam have the last word, so he runs after Sam. When Bob gets out of the restaurant, he sees Sam’s car coming down the street approaching the restaurant. Bob runs into the street, yelling at Sam. There are no other cars on the street and Sam could avoid Bob by crossing the middle line. But instead he wants to teach Bob a lesson and scare him a little bit. So Sam speeds up, planning to drive close to Bob and then swerve around him at the last minute. However, because it’s raining, the road is slick and when Sam swerves, the back of the car fishtails out and hits Bob, causing him injuries. Bob files an action for damages against Sam.

Typically, a claim for injuries sustained in a car accident is rooted in negligence. In North Carolina, a successful negligence action must show that the defendant breached a duty owed to the plaintiff to exercise reasonable care and that breach proximately and actually caused injury to the plaintiff. The North Carolina Supreme Court has held that motorists on the highway owe a duty to all others on the highway, including those on the shoulders, to “maintain a lookout in the direction in which the motorist is traveling.” In addition, North Carolina statute G.S. 20-174(e) provides that

every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.

Therefore, Sam owed Bob a duty, as another on the street, to maintain a lookout in the direction in which Sam was travelling and to avoid colliding with Bob. He negligently failed to do so, and his failure caused injury to Bob.

But doesn’t a pedestrian have some obligation to take care when walking in the street? Yes. In most states, an injured pedestrian’s negligence will decrease his recovery under the doctrine of comparative negligence. However, North Carolina is one of the few states which follows the doctrine of contributory negligence. If a defendant motorist is able to prove that an injured pedestrian is contributorily negligent, the pedestrian is barred from recovering damages from the negligent motorist.

In our fact scenario, Bob ran into the street. Is this negligent? North Carolina statute G.S. 20-174(a) provides that “[e]very pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.” Assuming that Bob might try to argue that he was attempting to cross the street, G.S. 20-174(a) required him to yield the right-of-way to Sam’s car because he was not crossing at a crosswalk at an intersection. Therefore, Bob was contributorily negligent in running into the street when he saw Bob’s car approaching.

There are a couple of defenses to contributory negligence. One defense is the last clear chance doctrine. The North Carolina Supreme Court held in Watson v. White (1983) that

an injured pedestrian found to be contributorily negligent must establish four elements in order to invoke the doctrine of last clear chance against the driver of the motor vehicle which struck and injured him. These are:

(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.

If a pedestrian plaintiff does not see the defendant’s vehicle, he satisfies the first element of the Last Clear Chance Doctrine because he has “negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care.” However, in our fact scenario, Bob did see Sam’s car and could have escaped from his position of peril by the exercise of reasonable care. Therefore, the last clear chance doctrine does not help Bob.

Another defense is to show that the defendant was not merely negligent, but was grossly negligent. In North Carolina motor cases, court have determined that

Our case law as developed to this point reflects that the gross negligence issue has been confined to circumstances where at least one of three rather dynamic factors is present: (1) defendant is intoxicated, (2) defendant is driving at excessive speeds, or (3) defendant is engaged in a racing.

Sam’s conduct does not fall into any of these categories, but common sense tells us that his behavior is more than mere negligence. Even if we assume that Sam’s conduct is grossly negligent, this is not necessarily the end of the discussion for Bob because an affirmative defense to a defendant’s gross negligence is a plaintiff’s gross contributory negligence. If walking into the street into the path of an approaching vehicle meets the standard for gross negligence of a pedestrian then Bob’s contributory gross negligence would bar any recovery even if he could show that Sam was grossly negligent.

But it’s not clear that Sam’s conduct falls under gross negligence. If Sam was not grossly negligent in his operation of his car, what was he? We’ll talk more about this tomorrow.

If you have been injured in a car accident, visit for legal help.

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