An excellent article in The Oregonian profiles the heartbreaking case of two young women who were killed at a crosswalk in Southeast Portland, and the disturbing difficulty that prosecutors have in finding any recourse for such tragedies.

Lindsay Leonard and Jessica Findlay were killed walking home from a trip to the grocery store. But due to Oregon laws, successfully prosecuting the driver who struck them or the company he was working for is nearly impossible. That’s because pedestrian’s a required to take responsibility for their own lives when crossing the street. Drivers, of course, have a responsibility to stop at all crosswalks when pedestrians are preparing to cross, but cannot be held liable for dangerous or irresponsible behavior of pedestrians.

That law carries some logic, but it also creates a situation in which a driver’s word is put against the pedestrian’s to determine whether the pedestrian took the necessary precautions before entering the crosswalk. However in deadly accidents, the pedestrian cannot speak for him or herself and–because many pedestrian accidents occur in the evening in crosswalks that aren’t heavily trafficked—there may be no other witness than the driver, who is unlikely to self-incriminate.

Sober drivers still make mistakes. But if there is no proof that the driver was impaired by alcohol or drugs, or distracted in some demonstrable way, proving liability is exceedingly difficult.

Though the law puts the burden of liability equally on drivers and pedestrians, the reality of accidents is that it’s the driver manipulating a lethal machine, and that drivers fail to yield to pedestrians at alarming numbers. Says Oregon’s Department of Transportation, “Seventy-five percent of driver errors in motor vehicle-pedestrian crashes are a failure of drivers to yield to the pedestrian. And half of the pedestrians who are struck by vehicles are hit while they are in a crosswalk.”

This problem is not unique to Oregon, whose pedestrian laws are fairly standard. Compare Oregon’s crosswalk laws to California’s crosswalk laws:

Oregon (excerpted):

A pedestrian commits the offense of pedestrian failure to yield to a vehicle if the pedestrian does any of the following:

  1. Suddenly leaves a curb or other place of safety and moves into the path of a vehicle that is so close as to constitute an immediate hazard.

California (V C Section 21950excerpted):

  1. The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter.
  2. This section does not relieve a pedestrian from the duty of using due care for his or her safety. No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard. No pedestrian may unnecessarily stop or delay traffic while in a marked or unmarked crosswalk.

Both laws are completely reasonable, but create a tough situation for the courts when there are no witnesses available. It just isn’t possible, unless it can be proven that the driver was on his cell phone at the time when the accident occurred, to determine a sober driver’s distraction level or whether simple negligence, a failure to look out for people at an intersection is at fault.

This is just one more reason it is crucial that pedestrians obtain acknowledgement of approaching vehicles before entering into a crosswalk. Pedestrians should use eye contact, a wave, obvious signs of slowing down, some sort of interaction to ensure the driver has seen them before stepping out.

Likewise, drivers should be extra vigilant at all crosswalks and intersections. In the case of Leonard and Findlay’s deaths, the driver passed through four signs that warned of pedestrians and crosswalks ahead, but still failed, for whatever reason, to see the two women before they entered the street.

If just one of the two parties had been vigilant of the ever-present dangers of crosswalks, especially those not at stoplight intersections, it’s likely Lindsay and Findlay would be alive today.

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Andy Gillin received his Bachelor’s Degree from the University of California at Berkeley and his law degree from the University of Chicago. He is the managing partner of GJEL Accident Attorneys and has written and lectured in the field of plaintiffs’ personal injury law for numerous organizations. Since 1972 he has been helping seriously injured victims throughout northern California fight & win their personal injury cases. Andy is one of the top awarded & recognized wrongful death lawyers in northern California.