It’s 12 am. You’ve had a beer or 7 and now you’re walking home. Suddenly out of nowhere a car speeds around the corner and hits you straight on. The driver didn’t have his lights on so clearly he was acting recklessly and owes you something in damages, right?

Not so fast. In Georgia, it all depends on just how negligent you are as a pedestrian. The driver may be prosecuted by the government for criminal acts but that will only lead to prison or jail time, not money to compensate you for your damages. This is where tort law comes into play. The pedestrian must sue the driver in order to recover any money.

Since the driver did not have their lights on and turned the corner much too fast, the most likely cause of action would be negligence: he wasn’t exercising the ordinary diligence of a reasonable person. That’s a slam dunk case for pedestrians in many states.

However, Georgia, like many other states, operates under the law of contributory and comparative negligence. Such a scheme states that the pedestrian’s negligence will be weighed against the driver’s negligence in determining how much money the pedestrian can recover. This is a defense that must be asserted by the driver. In such a scenario, the jury will be asked to allocate fault in the form of percentages. So they may find that although the driver was negligent, the pedestrian was drunk and crossed the street when the driver had a green turn arrow. This may result in the jury deciding that the driver was 40% at fault and the pedestrian was 60% at fault.

Little 5 Points Intersection

Contributory negligence is the blanket term for allowing damages to be reduced based on fault. Most states then use one of the following forms of comparative negligence to actually determine who pays what: 1.) damages are reduced to the extent the pedestrian was negligent; 2.) the pedestrian is not entitled to recover any damages if he was even 1% at fault; and 3.) the pedestrian is barred from recovering damages if he is more than 50% at fault.

Georgia uses the last option. So if the jury found that the pedestrian was 60% to blame then he is barred from recovering any damages. That’s a harsh rule, though not as harsh as the second option above. Even though the driver did not have his headlights on and took the corner in a reckless manner, the pedestrian is entitled to receive nothing because he was deemed to be more than 50% at fault. In the states that operate under option 1 above, the jury would calculate damages, say $200,000 in medical costs and lost wages, then reduce it by the pedestrian’s negligence, 60%. So the pedestrian would recover $80,000.

Now this rule goes for all types of negligence, not just situations involving drivers and pedestrians. However, as people continue to flood to denser areas more people are going to be biking and walking around town. This creates unfamiliar situations for all parties since each will be presented with new obstacles and challenges.

This is particularly important for cyclists and pedestrians since a jury will be allocating fault. Almost everyone in America drives. This means that almost everyone in America is empathetic to the experiences of drivers. Far fewer people are empathetic towards walkers and cyclists. Though more people are living in denser areas and walking and cycling more, the vast majority of Americans are not regular pedestrians and cyclists. So when it comes time for the jury, a random group of people, to allocate fault based on the evidence presented, it seems likely those people will already have a bias towards the driver and assign less weight to the driver’s negligence.

Park Grounds in Reynoldstown

A recent episode of the podcast Freakonomics highlighted this situation in New York. That state utilizes narrow parameters for convicting a driver who hits and wounds a pedestrian; meaning it is very difficult to prosecute a driver who negligently or recklessly strikes and wounds a pedestrian. This is a major problem in New York City where 52% of traffic deaths are pedestrian deaths; that compares to 14% nation-wide. The general idea is that since most people drive, most people do not support legislation that penalizes them when they do something wrong.

Most people would agree that someone who recklessly shoots a gun in the air near other people should be punished if the bullet ends up wounding someone. But the same can’t necessarily be said for a driver who acts negligently or recklessly, though the results may be exactly the same. This results in fewer laws that allow the government to charge a driver with murder or manslaughter if they kill someone while driving. The same type of mentality could be present among jurors.

Georgia does have an applicable statute that allows a driver to be convicted for recklessly killing someone while driving. Under GA Code 40-6-393 a driver can be convicted of homicide by vehicle if his reckless actions while driving cause the death of another; no malice aforethought, or intent to harm, is required. The offense is punishable by up to 15 years in prison.

Everyone needs to be more mindful of the other person’s situation. As a walker it is incredibly irritating when a car turns into the cross walk and narrowly misses hitting you because the driver wasn’t looking for anything other than another car. But, as most of us know, drivers can be presented with a lot of quickly moving items that can be difficult to navigate. We all need to be more careful, but drivers especially need to be more careful in denser areas since their negligent actions generally have a much greater impact on the lives of others than the negligent acts of pedestrians.