Pedestrian Hit in the Road, You Still Need Evidence of Negligence to Get to Jury

On a dark country highway, a man begins to walk across the road outside of the crosswalk because there isn’t one for over a mile in either direction. Then, “Bammm”, he is violently struck by a car and later dies of his injuries. The widow files a lawsuit against the driver of the car for failing to stop and failing to pay attention. There are no eyewitnesses and the driver says he wasn’t speeding, was paying attention and that the pedestrian just stepped out in front of him and there was nothing he could do.

Does this get to a jury? What evidence does the plaintiff have to show that the Defendant did something wrong? The Court of Appeal in Ireland v. Williams (2019) took up these facts in a recent case that is physical precedent only (meaning it was not a unanimous decision so it is not controlling, only persuasive authority).

When the plaintiff survives, there is often conflicting testimony about speed and the ability to change direction or brake. When the plaintiff dies from being hit by the car though, the situation is very different. There is only one witness left to the incident, the defendant. It is a well known rule in the law that in order for the case to go to a jury (survive summary judgment) there must be some evidence that the Defendant did something wrong, not just the fact of the crash. Oftentimes, the Plaintiff’s attorney will hire an expert collision reconstructionist who can analyze roadway skid marks, physical evidence, black box data from the vehicle and determine speed and the distance at which the pedestrian would have been visible.

In the Ireland case, the expert, Sean Alexander, was called in long after the crash and asked to analyzer the evidence and give an opinion on who was at fault. Alexander was at a major disadvantage because he could not determine which side of the road the pedestrian was crossing from. Without that key piece of data, it is almost impossible for an expert to give an opinion about whether he would have been visible to the driver for a longer or shorter period of time.  The Court noted “Alexander estimated that Ireland was traveling between 26 to 32 m.p.h. at the time of the collision, which was more than 10 m.p.h. below the speed limit, and based on road visibility conditions, Williams should have been visible to Ireland for at least 200 to 250 feet.”

Realize what is happening here; Alexander cannot say the driver was going the 45 speed limit because then he cannot say there is enough time for the driver to react. The faster you go, the less time to react. He faces a “Morton’s Fork”; either argue Defendant is speeding and acknowledge there is no time to react or allege Defendant is going 10 mph below the speed limit and that there is enough time to react.  Here, Sean was hemmed in because with no black box data, the driver’s testimony was that he was going 40-45 mph. The only possible source of speed data would be the amount of impact to the Plaintiff and that sounds like it was weak in this case.

“Suffice it to say, the foregoing testimony by Alexander is far too speculative to establish that any specific negligent act or omission by Ireland was the proximate cause of Williams’s death.[30] Indeed, we recently held in a negligence case—in which a driver hit a pedestrian under similar circumstances—that summary judgment was appropriate when the driver was not “violating any rules of the road” at the time of the accident, the pedestrian was hit when crossing the highway “outside of an available cross-walk[,]” and no evidence showed that the driver saw the pedestrian prior to striking her.” “Politzer v. Xiaoyan, 342 Ga. App. 224, 227-28 (2017)…” Ireland v. Williams (Ga. App., 2019)

Lack of data points will cripple any expert reconstructionist opinion and this was a case that just did not have a chance from the word go. It is a tragedy that the Plaintiff lost his life, but to arbitrarily blame the Defendant without any evidence is not fair either. When there is more data, expert recons can help the jury to understand how and why a particular crash occurred, just not in this case.