Jaywalking: Another law that nobody follows!

by Louis Grube on September 22, 2009

jay-walking-failWhile jogging around my college town the other day, I got to thinking about pedestrian traffic laws.  It occurred to me that I have neither followed them well myself nor seen them followed particularly well either.  There is apparently something about liberal arts students from New York, San Francisco, and every other large city known to man that makes them capable of both mosey-ing about in the street between the dining hall and the dorms and also ignoring imminent threats to mind and body caused by the cars that are, you know, just trying to be there too.  I began to wonder why we have laws dictating the flow of pedestrian traffic at all.  This got me thinking and I realized that there are a ton of laws that pretty much only bother people.  As the (self appointed) token student of philosophy on the writing staff of Legal Geekery, I’ve decided to take it upon myself to write a few posts of (almost actually good enough to be considered legal philosophy) legal philosophy that analyze laws that seem inconsequential and annoying.

I was annoyed by this pedestrian phenomena as a teen with a drivers license, speculative about the possibility that crossing carelessly could be convenient as a freshman here at Oberlin College, and guilty entirely of the violent crime of jay walking in front of cars while staring at the driver like a jerk during the remainder of my time at school.  I’ve decided to write about this topic first because it has a very certain character to it.  For a law to be both selectively enforced by police and almost uniformly dismissed as a general rule among the population, the question of why we have such a law needs to be answered.

To make things a bit more specific I’m going to focus on the facts ofAngry-Driverthe matter as they pertain to Ohio.  Traffic laws vary from state to state, but Ohio follows the Uniform Vehicle Code which is a set of traffic standards followed by many states and administered by The National Committee on Uniform Traffic Laws  and Ordinances.  The law regulating crossing of roads states that roads should be crossed at marked or unmarked crosswalks only, and that the pedestrian must yield right of way to drivers elsewhere.  Traffic laws pertaining to cars, however, do not relieve the driver of any duty to prevent a traffic collision with a pedestrian, even if the pedestrian does not have right of way.

Flash forward to a scenario where a person gets hit by a car.  In this hypothetical scenario, the facts support the assertion that this law is meaningless.  -  Also, for the philosophy NÜB, nobody is damaged in any really sad way because this is a thought experiment.   Nobody actually gets hurt, so you can feel better about thinking about the scenario.  -  A suit is filed against the driver for damages of some kind.  It is established that damages occurred, and in order to decide whether or not to award damages, and also how much to award them for, it is most common that an attempt to establish fault for the damages will happen.  Fault is decided most often by determining who in the situation is responsible for what percentage of the cause of the damages.  For example, the driver could be responsible 80% or 90%, depending on the facts of the collision.   The driver would then be responsible for paying a portion of the damages proportional to the level of fault that the driver is responsible for.  The catch here is that carelessness on the behalf of the pedestrian can never relieve the driver of his duty not to hit the pedestrian.  No amount of illegal jay walking could take responsibility away from the driver of the vehicle.  Damages cost the driver quite a bit, and if ticketed for jay walking at all, the pedestrian will be responsible for paying a tiny fee.

In this situation we see something important.  The law regulating pedestrian crossing has not served to hold pedestrians accountable for their actions.  It has not deterred, and certainly would not deter, a pedestrian from crossing in a dangerous setting.  With the way that pedestrian laws do not protect drivers from pedestrian misconduct, I’m shocked more people aren’t jumping out into the streets with the aim of collecting insurance settlements.  What then is the reason for this law?

Perhaps it is illegal for a less reasonable purpose. If you investigate the ways that the law is enforced, you find some interesting realities.  In Los Angeles particularly, and anecdotally I’ve seen this in San Francisco and New York personally, the jay walking law has become heavily enforced against the homeless.  Due to the inability of your average homeless person to pay a ticket of any sort, police are able to arrest the homeless once an arrest warrant had been issued for the nonpayment of said ticket. A quick Google News search will also show that a considerable number of cases of jay walking have been used to justify further investigations and often searches that result in far more serious charges for a very particular subset of people.  An obscenely high proportion of the jay walking mentioned in police blotters over the last week involve teenagers being reported by adult residents in upscale neighborhoods.  Another shocking trend is that a large fraction of these police interactions result in drug charges.

police-brutality-because-we-canIn these situations, investigation of jay walking allows police to legally justify the investigation and enforcement of other laws and social policies.  Even more scary is that we are almost all open to this particular form of legally justified search.  I am certain that the majority of people in the USA will end up jay walking at some point this year.  A police officer’s right to question or search you has to come from probable cause, and an initial minor traffic violation is often used to support the further investigation of many different crimes, most notably OVI or DUI.  A law that almost all people break, opens us all up to the possibility that we will be questioned in a way that could lead to further investigation.  I find this to be a scary and unfortunate legal situation.   The best way to open the American population up to considerably more invasive police scrutiny would be to make us all criminals in the eyes of the justice system, and as best can be told, we’re already one step along the road to that nightmare.

{ 10 comments… read them below or add one }

Joshua Auriemma September 23, 2009 at 7:16 pm

Maybe I’m reading this wrong, but it seems that you don’t really account for states with pure contributory negligence or modified comparative negligence regimes. For instance, it’s possible that if a jury finds that the jaywalker is at all responsible for the accident, he or she may not be able to recover. Same goes for certain comparative negligence regimes where the jaywalker is a minimum of some percentage at fault.

There also may be an issue of negligence per se, where jaywalking could cause someone to lose off the bat under

    any

kind of comparative/contributory negligence theory.

Of course, this is all theoretical and I’m basing my “knowledge” on 1L torts, so don’t take my word for it (Reading Raiiiinnnboowwww).

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Louis Grube September 30, 2009 at 7:41 am

@Joshua Auriemma,
You make some good points. I’d like to respond with three facts.
First off, I specified the great state of Ohio so as to get around the problem of not knowing much about negligence in other states. As far as I can tell it varies widely enough that a blog post would have been too short of a format to do negligence justice. (is that a pun? I can’t tell.)
Second, negligence per se may cause problems for a lawsuit happy pedestrian. I don’t know very much about how this is applied, but it occurs to me that this would only matter depending on the facts of the case, which I largely left out. I would disagree that all violations of the jay walking law would be negligent per se. Proximate Cause relies on the facts of the case (I’m avoiding a But-For joke…) and because of the interpretable nature of the counterfactual logical relationship it outlines, there could arguably be situations where a person would be technically jay walking and yet would have been unable to have acted otherwise. It seems to me that any time the jaywalker could say they were avoiding injury by jaywalking or if there could be established some sort of premeditated malice on the behalf of the driver, you could argue against a negligence per se argument. I will give you that I didn’t specify there was any sort of danger or malice. However, I’m pretty sure that if I had specified danger, I would have picked zombies.
That said, in my understanding of Ohio’s jay walking laws, according to Ohio Revised Code 4511.48: (E) “This section does not relieve the operator of a vehicle, streetcar, or trackless trolley from exercising due care to avoid colliding with any pedestrian upon any roadway.” I’m taking this to specify that breach of this law cannot be used to support a claim of negligence per se in the way you were suggesting, i.e. that because the accident wouldn’t have happened without jaywalking, then there would have been no injury and so the driver’s actions cannot be considered a cause. I’m not sure how this line has been used in the past, and my guess is that there is case law somewhere that clears all of this up, but I’m already being a bad bad finance director, and I can’t really afford to prove it by taking the time to, you know, actually looking for it.
Now, if I’m wrong about any of that, I’m just gonna put an addendum at the end of every article that I’m not only not a lawyer, but I probably don’t know what the hell I’m talking about.

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ashley October 19, 2009 at 8:22 am

during the first week of orientation, a very elderly professor was talking about the spirit vs. the letter of the law in regards to jaywalking. “i am a chicagoan, it is my birthright to jaywalk.”

and to end our sentences with prepositions.

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Hamzat January 26, 2010 at 11:58 am

@ashley, fuck off

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Louis Grube January 26, 2010 at 12:00 pm

@Hamzat, Not cool man. Please be nice and keep it clean like we had asked.

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Louis Grube October 20, 2009 at 7:49 am

@ashley, that just made my day!

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tOM Trottier November 12, 2009 at 4:32 pm

It would make more sense if the law gave the right of way to the more vulnerable person, so trucks would give way to cars which would give way to cyclists which would give way to pedestrians.

tOM

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Anti Hamzat February 24, 2012 at 1:13 am

tOM, that would be a very interesting progressive law, but would it cause more harm than good? What I mean by that is what if a pedestrian sprints out into the middle of Lower Michigan Avenue and E Grand Ave in Chicago (no offense), in broad daylight and gets nailed by an oncoming vehicle when the vehicle had a green light. The pedestrian now can’t walk for the rest of his or her life and takes the responsible driver to court because he or she knows they can simply win the case by pleading the newly passed statute. Is this fair? I’m glad that each case in individually accessed only because we might become that unlucky driver one day.

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Mom of injured pedestrian March 27, 2012 at 5:42 pm

In Ohio, my daughter was crossing a street not in a crosswalk (jaywalking?) and was 3/4 way across the street when she was hit by an oncoming car. She saw the car coming and misjudged thinking she could make it across. She had injuries and was taken by ambulance to hospital. The driver of the car told the officer that he didn’t see her becuase he was taking a drink of “pop”.
The police department is saying that it was my daughters fault because she was not in a crosswalk and saw the car coming and they are ticketing her. They didnt site the driver.
Is this correct? Isn’t the driver at fault as well?

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natalie pearson November 14, 2012 at 2:38 am

I am guilty of this i almost got me and my kids hit by a car.

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