Halloween Tragedies and Pedestrian Accident Law

By Michael GrossmanNovember 02, 2015Reading Time: 6 minutes

While Halloween is usually one of the more joyful holidays of the year, kids in costumes, candy, and a sense of community that comes from trick-or-treating, perhaps no other holiday brings pedestrians and vehicles into closer contact, with predictably tragic results. Just a small sampling of the news today shows that three people were killed in New York City, including a 10-year-old girl; A 5-year-old was killed in Minneapolis; A 14-year-old was killed in Utah; A 6-year-old was injured in Arkansas and there were too many other accidents to list.

While all of these accidents are tragic in their own right, they can serve as teachable moments regarding pedestrians, motor vehicles, and the law. Contrary to popular belief, the law is far more nuanced regarding accidents involving pedestrians and cars than most people think. I am sure that you have heard it said that "the pedestrian always has the right of way." Like most examples of absolutes in the law, nothing is ever as simple as it seems. Perhaps if the legal side of how pedestrians and motor vehicles interact with one another was better understood, some of the tragedies that pop up in the news every Halloween could be prevented.


Questions answered on this page:

  • Does the pedestrian always have the right of way?
  • Why is Halloween a particularly dangerous time for pedestrians and motor vehicles?
  • Does the law require drivers to be more vigilant on Halloween?

The Pedestrian Always Has the Right of Way, Or Do They?

As I mentioned before, we have all heard this line a million times and nothing could be further from the truth. Like other areas of the law, pedestrians and drivers both have responsibilities, or duties to one another. Whenever possible pedestrians have a duty to use crosswalks. Further, they, like everyone else, are bound by the reasonable person standard which proclaims that all people should conduct themselves as a reasonably prudent person should. While jaywalking citations used to be a cliche for small offenses for which people could be fined, the truth is that jaywalking can have tragic consequences. I am not suggested that the police should be out in force, enforcing jaywalking laws, but at the same time trivializing jaywalking laws might encourage a culture of dangerous behavior.

Similarly, pedestrians have a duty to cross at appropriate times. We have all had to slam on the brakes while the light was green to narrowly avoid hitting a pedestrian because someone decided that it would be a good time to cross the street. While our natural sympathies lie with anyone hit by a car, it hardly makes sense to punish a driver for something that was beyond their control. We know scientifically that it takes a certain amount of time for a person to mentally process an action, then another period of time for the signals to hit the brakes to travel from the brain to the appropriate muscles, and still more time for a vehicle to actually stop. When a driver has no way of stopping on time, due to circumstances beyond their control, we do not hold the driver responsible.

Of particular concern around Halloween is that pedestrians have a duty to watch out for cars and not leave a place of safety, like a sidewalk, to enter the roadway if it may be dangerous. Of course, knowing what is dangerous can be even trickier on Halloween. Since many costumes include masks, these masks can often obstruct the wearer's field of vision. Without even intending to be reckless, this reduced vision makes it more difficult for trick-or-treaters to spot oncoming cars. If you think about it, Halloween is probably the only time of the year where we encourage large numbers of people to walk around partially blind-folded.

"They Didn't Use the Crosswalk" and Other Fallacies

Now, even though the notion that pedestrians always have the right of way is not based in fact, that doesn't mean that every time that a pedestrian steps in front of a car that the pedestrian is definitely liable. Sometimes special circumstances make it such that a driver should anticipate even a seemingly random event, such as a pedestrian darting out in front of their car. In fact the law actually holds drivers to a higher standard on Halloween. The legal principle at work here is a "heightened sense of foreseeability." Put most simply, if you are driving on Halloween, you know that more pedestrians will be on the road than normal. You also know that a lot of those pedestrians will be young children. Since we all know that children do not always have the best judgement (that's why the law treats minors differently than adults), a heightened duty is placed on the driver to keep a proper look-out.

As we mentioned earlier, if a pedestrian jumps out in front of a driver under circumstances where the driver could not have seen it coming (legally speaking, where such an action was not foreseeable to the driver), the law holds that that driver was not negligent, and that the misconduct of the pedestrian is the actual proximate cause of the accident. But foreseeability, the notion that someone could reasonably predict some event is likely to occur, is based upon the reasonable person standard in any case based on negligence. That is to say, the question of whether or not it was foreseeable to a particular driver in any given pedestrian accident case that the pedestrian may dart out in front of them is a matter that is decided by a jury as they answer the question of, "Could a reasonably prudent person have foreseen that a pedestrian might have ran out in front of their car?"

Naturally, the way a jury answers this question will be unique to the facts and circumstances of each individual accident. In other words, there is not a one-size-fits-all answer. But, in all such cases, you can rest assured that they will take into consideration the sum total of information that was available to the driver around the time of the accident. For instance, if a driver turns into a parking lot for a daycare and sees that the parking lot is abuzz with children being loading into heir parents cars, that should inform a reasonably prudent person that there is a high likelihood that a child could run into the driver's path. So, if a case came before a jury wherein a driver ran over a child while driving through a busy daycare parking lot, it would be very difficult for a jury to conclude that such a collision was unforeseeable to the driver, and they will likely put at least some fault on the driver of the car. They would do so because he had time to observe the parking lot and should have concluded that it was highly possible that a child could cross his vehicle's path.

Under this legal concept, anytime a motorist enters an area where a reasonable person knows that children are likely to be, the motorist is expected to keep a more vigilant look-out. Near playgrounds and parks, for instance, we can foresee that balls will end up bouncing into the road and that children will chase after them. Part of being a responsible driver is anticipating these situations and reacting in a responsible manner, usually by slowing down.

Slowing down is another key component of the law where pedestrians and motor vehicles are concerned. We all know that the speed limit is intended for optimum road conditions. If there is heavy rain, snow, or fog on the roadway, we are all expected to slow down and maintain a safe speed. Or to put it another way, when the conditions warrant it, drive slower than the speed limit. Likewise, when we know children are in the area, speed should be adjusted accordingly. Sadly, many Halloween accidents occur because of drivers going the speed limit down a crowded neighborhood road as if it's business as usual. But that's precisely the problem. When you see kids all around, it's not business as usual, and your speed must be adjusted for the circumstances, never mind what the number on a sign says.

What This Means in Practice

In the end, the laws governing the interaction of pedestrians and motor vehicles are not as cut and dry as people make them out to be. There are few absolutes. A lot of people mistakenly see the law as some sort of instruction manual for life. Just follow the directions and everything will come out right. It would be more accurately to think of the law like the steps of a dance; Certainly there are rules that seem plain, until you have to put them into practice with another human being. What results is every bit as much art as science.

This interpretation of the law and justice goes back to Plato. In his Republic Plato initially wants judges raised separately from society, educated only in the law and good morals. However, he recognizes that that project would be doomed to failure, because without experience of the world around them, the judges would not be able to render just decisions consistent with the expectations that citizens develop as they participate in society. In a modern context, how would such a judge understand that naturally more children will be on the streets on Halloween? While I understand that a lot of people just want simple, clear rules, without the rules being elastic enough to stretch with human experience, they are useless.

Pedestrian accidents are particularly difficult to deal with, particularly those that take place on what is supposed to be a holiday that is all about kids having fun. In our line of work, we see our fair share of family fun that turns tragic. While we are here to help victims hold those who have injured them or their families accountable, using every remedy the law affords, it would be better for everyone to understand and follow the rules of the road to prevent holiday fun from turning tragic in the first place.