[Efthreeoh]

Originally Posted by aozer

Or you just continue to text/drink/eat/etc and drive until you kill yourself or someone else

Or just get better at it.

[och]

Originally Posted by IK6SPEED

She shouldn’t have crossed period.

There is no expectation that she had the right a way.

She also did not speed up to get out if way.

This is a defense attorneys dream case with the video.

Slam dunk.

Pedestrian not having the right of way does not mean a car has the right to run him/her over. It not like she popped out from inbetween parked cars, this was on an empty, smooth, very well lit road. There was plenty of time for the driver to see her, and swerve around her or apply brakes.

[IK6SPEED]

Originally Posted by RickFLM4

Not so sure about that. No disputing she should not have crossed in that location. But we have all come across jaywalkers and we all know you don't have the right to run them over just because they jaywalked. As I stated, she was mostly across the road so it's not the same as stepping out in front of a moving car as she stepped off a curb.

Also, the lack of slowing down may be a strong indication that the car's ability to detect anything in front of it may be flawed. She was in the road for long enough to cross 1 1/2 lanes and the car didn't pick her up, jaywalking or not. Further the fact that it was being tested with a person behind the wheel "just in case" but that person wasn't paying attention, doesn't really help the defense.

Again, slam dunk.

By not having required lighting, driver would most likely not have seen.

It doesn’t matter how far she got across road. No different than driver that runs an intersection.

She was REQUIRED to follow all Motor Vehicle Laws. She “pulled out” in front of vehicle.

[RickFLM4]

Originally Posted by IK6SPEED

Again, slam dunk.

By not having required lighting, driver would most likely not have seen.

It doesnÂ’t matter how far she got across road. No different than driver that runs an intersection.

She was REQUIRED to follow all Motor Vehicle Laws. She “pulled out” in front of vehicle.

Except she was walking, not riding the bike...

[IK6SPEED]

Originally Posted by och

Pedestrian not having the right of way does not mean a car has the right to run him/her over. It not like she popped out from inbetween parked cars, this was on an empty, smooth, very well lit road. There was plenty of time for the driver to see her, and swerve around her or apply brakes.

Wasn’t well lit. Was lit in multiple distances.

She was wearing dark clothes and violated vehicle lighting laws, besides pulling out in front of vehicle.

Slam dunk.

[IK6SPEED]

Originally Posted by RickFLM4

Except she was walking, not riding the bike...

Laws are applicable to pedestrian walking with bike across the street.

Only reason Uber would settle would be to avoid publicity in trial s slam dunk.

[och]

Originally Posted by IK6SPEED

Again, slam dunk.

By not having required lighting, driver would most likely not have seen.

It doesn’t matter how far she got across road. No different than driver that runs an intersection.

She was REQUIRED to follow all Motor Vehicle Laws. She “pulled out” in front of vehicle.

That is not how convictions in fatal traffic accidents work, they are a lot more nuanced and all the factor are considered.

Also, she was walking her bicycle across the street, which makes her a pedestrian at that point, so it probably wouldn't matter in court whether or not her bicycle was properly equipped. An argument can be made that the bicycle wasn't properly equipped, so she made the choice to walk it instead of riding it. And you really can't see in the grainy video whether or not the bicycle was equipped with the lights or not.

[IK6SPEED]

Originally Posted by och

That is not how convictions in fatal traffic accidents work, they are a lot more nuanced and all the factor are considered.

Also, she was walking her bicycle across the street, which makes her a pedestrian at that point, so it probably wouldn't matter in court whether or not her bicycle was properly equipped. An argument can be made that the bicycle wasn't properly equipped, so she made the choice to walk it instead of riding it. And you really can't see in the grainy video whether or not the bicycle was equipped with the lights or not.

Slam dunk. You can clearly see no light in front of bike as required.

Regardless, SHE tragically violated State Law, no matter if on bicycle or pedestrian. She was not in a crosswalk, violating Arizona State Law 28-793 A and C.

Nuances such as her wearing dark clothing will also weigh further against her.

[och]

Originally Posted by IK6SPEED

Slam dunk. Sure you can see no light in front.

Regardless, SHE tragically violated State Law, no matter if on bicycle or pedestrian. She was not in a crosswalk, violating Arizona State Law 28-793 A and C.

Nuances such as her wearing dark clothing will also weigh further against her.

Can you find a state law that says you have the right to run over a pedestrian crossing outside of crosswalk?

[RickFLM4]

Originally Posted by IK6SPEED

Slam dunk. Sure you can see no light in front.

Regardless, SHE tragically violated State Law, no matter if on bicycle or pedestrian. She was not in a crosswalk, violating Arizona State Law 28-793 A and C.

We alll agree she jaywalked, but drivers do not have the right to run people down when it can be avoided. See 28-794. The apparent lack of slowing down, combined with a vehicle in test manned by an emergency driver who wasn’t paying attention, cannot simply be ignored regardless of the jaywalking. The driver of the vehicle, computer and human, do not appear to make any attempt to avoid a collision, even at the last second.

[IK6SPEED]

Originally Posted by och

Can you find a state law that says you have the right to run over a pedestrian crossing outside of crosswalk?

According to law and USA Constitution, anything not specified prohibited by law you have a legal right to do.

Again, you have failed to show accident could be prevented. Read below.

Originally Posted by RickFLM4

We alll agree she jaywalked, but drivers do not have the right to run people down when it can be avoided. See 28-794. The apparent lack of slowing down, combined with a vehicle in test manned by an emergency driver who wasn’t paying attention, cannot simply be ignored regardless of the jaywalking. The driver of the vehicle, computer and human, do not appear to make any attempt to avoid a collision, even at the last second.

There wasn’t enough time to slow down, due in no small part, to victim wearing dark clothes and no light on bike at 10PM.

Car has to make decision based on rules. Given multiple violations of victim, safety of car passengers should have been and most likely were priority.

There is a doctrine of last chance in many states, where as you state, you do not have unequivocal right to run down people, but based on video and car not speeding, there is nothing to show driver or computer could have prevented.

Car loaded with electronics had better chance of avoiding accident than when driven by a person. Again, tragic accident. But deaths will continue with automated driverless cars when people do stupid things.

[RickFLM4]

Originally Posted by IK6SPEED

There wasn’t enough time to slow down, due in no small part, to victim wearing dark clothes and no light on bike at 10PM.

Car has to make decision based on rules. Given multiple violations of victim, safety of car passengers should have been and most likely were priority.

There is a doctrine of last chance in many states, where as you state, you do not have unequivocal right to run down people, but based on video and car not speeding, there is nothing to show driver or computer could have prevented.

Car loaded with electronics had better chance of avoiding accident than when driven by a person. Again, tragic accident. But deaths will continue with automated driverless cars when people do stupid things.

Don't automated driver cars work off radar / LIDAR? Do they depend on lights / color of clothes or could they have malfunctioned?

What about the driver not watching the road?

We'll just have to agree to see how it plays out.

[och]

Originally Posted by IK6SPEED

According to law and USA Constitution, anything not specified prohibited by law you have a legal right to do.

LMFAO, got ya. I'm sure thats exactly how judges view every fatal accident - it is constitutional right to run over pedestrians outside of crosswalks.

Originally Posted by IK6SPEED

There is a doctrine of last chance in many states, where as you state, you do not have unequivocal right to run down people, but based on video and car not speeding, there is nothing to show driver or computer could have prevented.

Car loaded with electronics had better chance of avoiding accident than when driven by a person. Again, tragic accident. But deaths will continue with automated driverless cars when people do stupid things.

I don't care for that self driving fallacy, but there was plenty the driver could have done if she was paying attention. The half assed onboard system encouraged the driver to be distracted and someone got killed as a result.

[IK6SPEED]

Originally Posted by RickFLM4

Don't automated driver cars work off radar / LIDAR? Do they depend on lights / color of clothes or could they have malfunctioned?

What about the driver not watching the road?

We'll just have to agree to see how it plays out.

For all you know driver was looking at road via the electronic on screen cameras.

I stated in my first post, car had lidar AND Radar. Most likely because of where she decided to cross, computer saw this as something else. That part we have yet to find out.

Regardless, as stated, no evidence that driver could have prevented.

[IK6SPEED]

Originally Posted by och

LMFAO, got ya. I'm sure thats exactly how judges view every fatal accident - it is constitutional right to run over pedestrians outside of crosswalks.

I don't care for that self driving fallacy, but there was plenty the driver could have done if she was paying attention. The half assed onboard system encouraged the driver to be distracted and someone got killed as a result.

Nope. You asked a specific legal question and I gave you the legal answer.

Just as rights and freedom are given unless prohibited by law, you are not tasked with preventing deaths of others through their stupidity and the right of last chance if very difficult to prove a “what if”, especially with this video.

[och]

Originally Posted by IK6SPEED

Nope. You asked a specific legal question and I gave you the legal answer.

Just as rights and freedom are given unless prohibited by law, you are not tasked with preventing deaths of others through their stupidity and the right of last chance if very difficult to prove a “what if”, especially with this video.

Are you a lawyer by chance?

[MalibuBimmer]

Originally Posted by FC4

How many pedestrians were struck and killed today by traditional human-driven cars?

Exactly. The interesting philosophical question is this:

How good does autonomy have to be before we accept it as an alternative to human-directed driving?

The correct answer, which is both politically and socially unacceptable, is:

Just slightly better than human-directed driving.

Instead, we demand near perfection of things which human beings do not control, although our control is pretty pathetic, especially with cars.

Not only are drivers incompetent and inattentive, but they are also usually unaware of their cars' capabilities and unable to use those capabilities to the fullest. (One example: human beings don't brake hard enough in emergency situations. So car designers, having noticed the problem, have boosted the force of hard braking.) In addition to inattention is distraction. And eating and having imbibed alcohol. All of them are killers.

Human beings pretty much do a shit poor job of driving. Autonomous driving which saves a few lives is sufficient to install it. But that won't happen. Call it species hubris, or maybe fear of being replaced. Whatever it is, autonomy is going to have to be close to perfect.

[IK6SPEED]

Originally Posted by och

Can you find a state law that says you have the right to run over a pedestrian crossing outside of crosswalk?

Yes

Arizona Supreme Court, which sets the precedent

Odekirk v. Austin

Annotate this Case
90 Ariz. 97 (1961)

366 P.2d 80

Wilnelmina ODEKIRK, as Guardian ad Litem for Cleland Odekirk, a Minor, Appellant, v. John D. AUSTIN, Appellee.

No. 7125.

Supreme Court of Arizona. En Banc.

November 8, 1961.

*98 Trew, Woodford & Dodd, Phoenix, for appellant.

Snell & Wilmer, Phoenix, for appellee.

BERNSTEIN, Vice Chief Justice.

The sole question presented by this appeal is whether the trial court erred in refusing to instruct the jury as to the doctrine of last clear chance.

In determining whether the plaintiff's-appellant's request for submission of *99 a last clear chance issue to the jury was properly refused we will consider the facts in the light most favorable to plaintiff-appellant together with the logical inferences which reasonably flow from such facts. Casey v. Marshall, 64 Ariz. 232, 168 P.2d 240 (1946).

The facts are: about 5:15 P.M. on April 17, 1957, plaintiff Cleland P. Odekirk, an eighteen year old college student, disembarked from a friend's automobile at the northeast corner of Seventh Avenue and West McDowell Road in Phoenix. It was a clear, dry day. He proceeded west across the intersection on the north side of West McDowell Road and began running west on the sidewalk. The plaintiff did not remember having left the sidewalk.

A motorist, Mr. O'Brien, driving in the eastbound lane at the time of the collision, testified that he first observed the plaintiff running down the street in a westerly direction in the westbound lane. At this time the plaintiff was a foot and a half from the north curb of West McDowell Road running parallel to the curb. The plaintiff then moved another foot to the south into the street at which time Mr. O'Brien observed the defendant's automobile coming from behind the plaintiff at approximately fifteen or sixteen miles per hour. Mr. O'Brien did not see the actual collision because he had passed the point of impact, but estimated that it was between five to seven seconds from the time he first observed the plaintiff until the collision.

The defendant stated that he did not see the plaintiff until an instant before the impact and that he immediately put on his brakes but could not stop in time. The point of impact was a little over four feet south of the north curb.

The plaintiff brought this action alleging negligence on the part of the defendant. The defendant answered setting up the affirmative defense of contributory negligence. The case was tried before a jury who returned a verdict for the defendant. Thereafter judgment was entered, motion for new trial denied, and this appeal followed.

From the evidence adduced at the trial the jury might have believed the defendant did not see the plaintiff until an instant before the injury, but that he, in the exercise of reasonable care, should have seen the plaintiff as he proceeded from the sidewalk onto the street. Therefore the evidence would sustain a finding that the defendant was negligent in failing to keep a proper lookout. Pacific Greyhound Lines v. Uptain, 81 Ariz. 359, 306 P.2d 281 (1957).

There are few, if any, legal doctrines that are more difficult of logical application to varied and ever varying situations than that known as the doctrine of last clear chance, and there is accordingly a vast amount of case law dealing with the subject. *100 Wide research has revealed that the experience of the state courts in applying the doctrine has presented similar problems. Beginning with broad statements, they have found that they are too broad and have modified them only to find that the rules laid down do not apply to the ever varying situations and must be explained and modified again. This process has not yet been completed.

The doctrine of last clear chance is applied for the purpose of determining the legal proximate cause of the injury. The reasoning behind the doctrine is that although the negligence of both plaintiff and defendant continues up to the time of the injury, plaintiff's negligence is remote while the defendant's conduct is the proximate cause of the accident. But "the biggest problem for both the trial and appellate courts necessarily arises in attempting to determine whether the negligent acts of both parties concur as proximate cause. If so, then clearly defendant cannot be guilty of having had the last clear opportunity to avoid the accident." Hirsh v. Manley, 81 Ariz. 94, 300 P.2d 588, 591 (1956).

We have heretofore stated that we will follow the principles set forth in the American Law Institute's Restatement of the Law except in cases where a different rule has been laid down by this Court. Irwin v. Murphey, 81 Ariz. 148, 302 P.2d 534 (1956); Rodriquez v. Terry, 79 Ariz. 348, 290 P.2d 248 (1955); Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133 (1945); Waddell v. White, 56 Ariz. 420, 108 P.2d 565 (1940). Under Restatement of the Law, Torts, §§ 479, 480, there are two situations to which the doctrine of last clear chance is applicable.

First, where the defendant did not actually see the peril of the plaintiff, but by keeping a reasonable careful lookout should have seen the peril of the plaintiff and by the exercise of reasonable care have thereafter avoided the injury. In this situation the doctrine only applies when the plaintiff's negligence has terminated or culminated in a situation of peril from which he could not, by the exercise of reasonable care, extricate himself. Gray v. Woods, 84 Ariz. 87, 324 P.2d 220 (1958); Hirsh v. Manley, supra; Restatement of the Law, Torts, § 479.

It is significant to note that the situation of danger or position of danger referred to in the authorities dealing with the last clear chance doctrine, is reached only when a plaintiff, moving toward the path of an oncoming object has reached a position from which he cannot escape by the exercise of ordinary care.

"* * * Where the defendant does not actually know of the plaintiff's situation of peril, the doctrine can only properly be applied where the plaintiff has gotten into a position of inextricable *101 peril. An illustration of this is where a person has caught his foot in a railroad switch, or is in some other similar predicament, so that he is thereafter unable to avert the injury. In such a situation, the plaintiff's negligence has come to rest. In such circumstances the defendant may be held responsible if he either knows, or in the exercise of reasonable care should know, of the plaintiff's helpless situation in time to avoid the injury and fails to do so. "In regard to the application of this principle, the plaintiff here is faced with a dilemma: she was either in inextricable peril or she was not. If she was not in inextricable peril, then at any instant up to the time she got into such predicament, by the exercise of reasonable care, she could have observed the oncoming car and have avoided being hit. On the other hand, she could only have gotten into inextricable peril by getting into the path of the defendant's car, and her peril could be considered inextricable only if the defendant was then too close to avoid striking her. Thus, by the very description of the situation, he did not have the `last clear chance' to avoid the injury. As the phrase indicates, it must be a fair and clear opportunity and not a mere possibility that the collision could have been avoided." Fox v. Taylor, 10 Utah 2d 174, 350 P.2d 154, 156-157 (1960).

Certainly, in this case, plaintiff's negligence had not terminated and it would seem equally certain that it had not culminated in a situation of peril from which he could not extricate himself. The facts disclose that plaintiff, without looking, left the sidewalk and was running, with his back to oncoming traffic, up the right side of the street at about a foot and a half from the curb and then angled over a few more feet into the street before being struck by the defendant's automobile. If he had been vigilant it would have been his duty to have stepped off the street at any instant and to have avoided the injury. Plaintiff's negligence therefore never terminated nor culminated in a situation of peril from which he could not extricate himself by the exercise of ordinary care.

It is argued that one who is oblivious to his danger is, in effect, as unable to extricate himself as one who is physically unable to do so. In applying the doctrine of last clear chance we are not exclusively concerned with the negligence of the defendant in the action. We are primarily concerned with the party who seeks to have his own negligence excused by the application of the doctrine. The negligence of the man who is physically unable to extricate himself, after getting his foot stuck in the road, has terminated. But the man *102 walking or running on the wrong side of the road and not on the sidewalk in disobedience to the statute A.R.S. § 28-796 and oblivious to his danger in so proceeding is negligent, Coe v. Hough, 42 Ariz. 293, 25 P.2d 547 (1933), until and at the very moment of his injury. If we were to accept the theory urged it would mean that a plaintiff should be in a better position to have his negligence excused under the last clear chance rule if he took no care whatsoever for his own safety than if he kept careful watch for cars coming from behind. We cannot accept the theory that one who is oblivious to his danger is as unable to extricate oneself as one who is physically unable to do so.

Second, an oblivious or inattentive plaintiff not in a position of danger can only avail himself of the doctrine of last clear chance where the defendant actually saw the plaintiff or the peril of the plaintiff and should have appreciated the danger and thereafter fails to exercise reasonable care to avoid the injury. Restatement of the Law, Torts, § 480. Under this section of the Restatement dealing with an inattentive plaintiff we are only concerned with whether the defendant actually saw the plaintiff. If a defendant actually sees the plaintiff the doctrine applies although the plaintiff's negligence continues up to the instant of the injury and never terminates or culminates in a position of peril. The application of the rule in a situation such as this needs no support outside of simple considerations of humanity. Any other view would condone wilful and wanton injury.

We conclude that the doctrine of last clear chance is applicable in this jurisdiction under the following circumstances: 1. (a) The plaintiff has negligently subjected himself to a danger and such negligence has terminated or culminated in a situation of peril from which he could not, by the exercise of reasonable care, extricate himself; (b) the defendant saw or ought to have seen the peril of the plaintiff, and (c) the defendant thereafter has a last clear chance to avoid injuring the plaintiff by the exercise of reasonable care and fails to do so. 2. (a) The plaintiff has negligently subjected himself to a danger which he could have avoided by the exercise of reasonable vigilance; (b) the defendant actually saw or knew of the plaintiff's situation and realized or ought to have realized that the plaintiff was inattentive, and (c) the defendant thereafter had a last clear chance to avoid injuring the plaintiff by the exercise of reasonable care and fails to do so.

In this case, the evidence is undisputed that the defendant did not actually see the inattentive plaintiff until an instant before the injury. Under this situation the defendant *103 did not then have an existing ability to avoid harming the plaintiff.

"If the defendant does not discover the plaintiff's situation, but merely might do so by proper vigilance, it is obvious that neither party can be said to have a `last clear' chance. The plaintiff is still in a position to escape, and his lack of attention continues up to the point of the accident, without the interval of superior opportunity of the defendant which has been considered so important. The plaintiff may not demand of the defendant greater care for his own protection than he exercises himself. All courts except those of Missouri hold that there can be no recovery." Prosser, Torts, 2d Ed., p. 294.
Such being the case, the plaintiff's negligence was proximate as it was continuous and contributory with that of the defendant and thus the ordinary rules of negligence and contributory negligence were applicable, rather than the exceptional doctrine of last clear chance.

In so far as Layne v. Hartung, 87 Ariz. 88, 348 P.2d 291 (1960), is inconsistent with the views expressed herein, it is expressly overruled.

Judgment affirmed.

STRUCKMEYER, C.J., and UDALL, JENNINGS and LOCKWOOD, JJ., concur.


Slam dunk with video.

#2 not met.

[IK6SPEED]

Originally Posted by FC4

How many pedestrians were struck and killed today by traditional human-driven cars?

Agreed in theory, but given the low number of self driving cars, not a fair comparison.

[IK6SPEED]

A fatal crash involving a self-driving Uber likely was "unavoidable" based on an initial police investigation and a review of video, Tempe Police Chief Sylvia Moir told The Arizona Republic on Tuesday.

Moir said, however, that any charging decision would be up to the Maricopa County Attorney's Office.




It's very clear it would have been difficult to avoid this collision in any kind of mode (autonomous or human-driven) based on how she came from the shadows right into the roadway," Moir told the San Francisco Chronicle after viewing the footage.

A large median at the site of the crash has signs warning people not to cross mid-block and to use the crosswalk to the north at Curry Road instead. But the median also has a brick pathway cutting through the desert landscaping that accommodates people who do cross at that site.



Amanda Jacinto, a spokeswoman for the Maricopa County Attorney's Office, said that when Tempe police finish the investigation, a prosecutor will review the case to determine if charges should be filed.

"We will assist as needed and await a submittal to conduct a charging review, if appropriate," Jacinto said.

She added, "Not all vehicular incidents, even those that result in the tragic loss of life, ultimately present a case for a criminal prosecution."

[RM7]

Originally Posted by och

Can you find a state law that says you have the right to run over a pedestrian crossing outside of crosswalk?

That's not the way laws work. If the driver creamed a pedestrian and you could prove something else was at work, such as the person was distracted by their phone, then you could likely prove reckless driving, but you'd have to prove that situation beyond a reasonable doubt, which is often a hard thing to prove. In this case, the driver doesn't appear to be at fault, the pedestrian does. That results in no charges against the driver.

This happens semi-regularly in my city (unfortunately). I'm also an investigator and I work with attorneys. If you are going to say there was some sort of wrong-doing on the driver/car's side of things, you gotta prove it. Killing the pedestrian does not prove it.

[IK6SPEED]

Originally Posted by JamesNoBrakes

That's not the way laws work. If the driver creamed a pedestrian and you could prove something else was at work, such as the person was distracted by their phone, then you could likely prove reckless driving, but you'd have to prove that situation beyond a reasonable doubt, which is often a hard thing to prove. In this case, the driver doesn't appear to be at fault, the pedestrian does. That results in no charges against the driver.

This happens semi-regularly in my city (unfortunately). I'm also an investigator and I work with attorneys. If you are going to say there was some sort of wrong-doing on the driver/car's side of things, you gotta prove it. Killing the pedestrian does not prove it.

Exactly. Thanks.

Appears victim was homeless and had been released from prison in December 2016 for crimes and multiple drug charges.

That has no bearing on fault, but brings into question how anyone could file civil suit against Uber for her estate, given she was homeless and relatives (if any) would have an even harder time proving a loss under loss conditions.