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"Hit and Run" Where The "Perp" Didn't Hit Anyone:

From a local crime report: FELONY HIT & RUN, 12/04/07, 300 block S. 12 St. On December 4 around 6:45 am, a pedestrian was crossing S. 12 St near S. Clark St in a crosswalk. A Dodge Caravan traveling east on S. 12 St yielded to the pedestrian, but a white sedan traveling west did not. The pedestrian fell onto the Dodge Caravan while trying to avoid being struck by the sedan. The suspect vehicle fled the scene. The pedestrian suffered minor injuries and was treated at a local hospital.

If the facts are right, the white sedan driver is clearly guilty of failing to yield to a pedestrian in a crosswalk, but "hit and run?"

OrinKerr:
I believe the statute is here. It seems that the crime is failure to stop when a vehicle is "involved" in an accident in which a person is injured, not actually "hitting" a pedestrian and leaving. Text reproduced below.

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§ 46.2-894. Duty of driver to stop, etc., in event of accident involving injury or death or damage to attended property; penalty.

The driver of any vehicle involved in an accident in which a person is killed or injured or in which an attended vehicle or other attended property is damaged shall immediately stop as close to the scene of the accident as possible without obstructing traffic, as provided in § 46.2-888, and report his name, address, driver's license number, and vehicle registration number forthwith to the State Police or local law-enforcement agency, to the person struck and injured if such person appears to be capable of understanding and retaining the information, or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property. The driver shall also render reasonable assistance to any person injured in such accident, including taking such injured person to a physician, surgeon, or hospital if it is apparent that medical treatment is necessary or is requested by the injured person.

Where, because of injuries sustained in the accident, the driver is prevented from complying with the foregoing provisions of this section, the driver shall, as soon as reasonably possible, make the required report to the State Police or local law-enforcement agency and make a reasonable effort to locate the person struck, or the driver or some other occupant of the vehicle collided with, or the custodian of the damaged property, and report to such person or persons his name, address, driver's license number, and vehicle registration number.

Any person convicted of a violation of this section is guilty of (i) a Class 5 felony if the accident results in injury to or the death of any person, or if the accident results in more than $1000 of damage to property or (ii) a Class 1 misdemeanor if the accident results in damage of $1000 or less to property.
1.6.2008 11:04am
Tony Tutins (mail):
I felt the same way in Garrett v. Dailey. How could the kid have committed a battery? True, he pulled out the chair, but she hit the ground on her own.
1.6.2008 11:09am
Choy Mu (mail):
Actually, I would expect the authorities to charge the driver of the Dodge Caravan with hit and run, the pedestrian to sue him for damages, ... and win. Hallelujah.
1.6.2008 11:09am
George Weiss (mail):
doesn't seem clear from the statute whether the criminal liability is strict liability or requires intent.

a statue like this inherently presents the possibility that the driver didn't know that someone was injured or a car hit.
1.6.2008 11:11am
George Weiss (mail):
my mistake. it requires a mens rea so i could live with the idea that all you have to be is "involved" for it to take effect.

HERCHENBACH v. COMMONWEALTH 38 S.E.2d 328
1.6.2008 11:24am
David Chesler (mail) (www):
What does "involved" mean?
1.6.2008 12:03pm
Peter Wimsey:
We have a similarly vague statute in my state that has been the subject of some litigation. Basically a bad driver caused another vehicle to swerve to avoid him; the swerving vehicle then drove off the roadway and crashed into a tree; bad driver continued on and did not notify anyone. Bad driver was prosecuted for hit and run; defense was that he was not "involved" in an accident because his car did not hit another car. On appeal the court rejected the argument on predictable grounds.

I don't think the lack of knowledge claim was presented; that's a jury question in any event.
1.6.2008 12:39pm
AK (mail):
Actually, I would expect the authorities to charge the driver of the Dodge Caravan with hit and run, the pedestrian to sue him for damages, ... and win. Hallelujah.

I doubt it. The contact between the car and the pedestrian does not meet the elements of a battery, and there's nothing to indicate negligence on the part of the driver before the collision.

The statute creates something of a duty of rescue, which the driver breached by failing to stop and render assistance. But it's not clear that this breach was the proximate cause of harm to the pedestrian. Did the pedestrian (1) need medical attention and (2) have no other way to get it than through the actions of the driver?
1.6.2008 12:55pm
PJT:
Speaking of, I think requiring vehicles to yield to pedestrian's in cross walks creates more danger than it prevents. The most dangerous situations I see are when one vehicle stops in the middle of a busy road. Other vehicles often do not. And the stopped vehicle shields the pedestrian from the view of others. Unless there is a stop sign or light, pedestrians should be on their own crossing streets.
1.6.2008 1:31pm
DavidBernstein (mail):
I'd vote to acquit if I were on the jury. The language is too ambiguous, and I don't think that one could prove beyond a reasonable doubt that this driver knew he was "involved" in the accident.
1.6.2008 1:32pm
DavidBernstein (mail):
For that matter, if the Caravan was stationary when the victim "fell onto it," it's not clear that a reasonable person would realize there had been an "accident."
1.6.2008 1:54pm
Dave N (mail):
The complaint about imprecise legal language in news stories is certainly nothing new. After all, "assault" is used as a synonym for "battery" ALL the time.
1.6.2008 2:28pm
Bruce Hayden (mail) (www):
Whether explicit or implicit, mens rea seems a likely requirement. Absent someone in the car witnessing the driver of same noticing the accident, I would think proving such beyond a reasonable doubt would be problematic. The driver would probably defend by just saying he saw someone jump out of the way, and then he was concentrating on what was going on in front of him. If he didn't see the pedestrian jump/fall onto the van, then no mens rea.

I don't like the outcome, but I don't see a conviction.
1.6.2008 2:39pm
OrinKerr:
David B. writes:
I'd vote to acquit if I were on the jury. The language is too ambiguous, and I don't think that one could prove beyond a reasonable doubt that this driver knew he was "involved" in the accident.

For that matter, if the Caravan was stationary when the victim "fell onto it," it's not clear that a reasonable person would realize there had been an "accident."
Doesn't that depend on the facts -- facts we simply do not know from the little news blurb you quote? I'm not sure how you know your vote based simply on that short paragraph.
1.6.2008 4:29pm
John R. Mayne (mail):
We don't have all the facts here, but it certainly could be a hit and run.

If you still have a problem with the "hit," part consider: Orin is driving down the wrong side of the road, and watches David swerve out of way into a power pole. If Orin keeps driving, he's going to get arrested.

If the problem is whether the driver knew (or, in most jurisdictions, should have known) that harm occurred, I find it pretty dubious to guess based on the paragraph above. There may well be plenty of evidence to prove guilt; we don't know.

--JRM
1.6.2008 4:32pm
Mike& (mail):
Interesting. A "hit and run" statute exist primarily so that an injured party will (presumably) immediately receive aid; as the person who hits you is most likely the closest to you. Even people who wouldn't otherwise stop to help would at least call 911 if the law required them to.

Here, the pedestrian would presumably receive aid from the person who actually hit him. So the spirit of the law wouldn't seem to apply.

OTOH, such laws also ensure that that party responsible will bear his share of financial responsibility for his actions. Here, the sedan's driver caused the accident, and thus is at least partially responsible for the pedestrian's injuries.

In any event, I don't have any sympathy for people who fail to yield to pedestrians in crosswalks. I walk most places, and encounter people who fail to yield on a daily basis.

If the driver intentionally failed to yield, I hope the driver goes to prison. Really, I do. Anyone who gets into thousands of pounds of steel and then seeks to bully unarmed pedestrians has a special kind of psychopathy. After all, when outside of their cars, such people aren't so confrontational. The same people so tough when in their cars will scurry like rats into the shopping center when confronted after they have exited their cars. People who only act to harm others smaller than them are especially odious, and warrant no sympathy.

Funny story: Once while walking with my dog and wife, we were almost hit by a car that failed to yield - indeed, he rant a stop while we were inside the cross walk. The car was in a hurry. I had a feeling where the car was headed. It was a Sunday, after all.

Sure enough... The car pulled into the local church's parking lot. You don't get irony like that every day, so I was more amused than outraged.
1.6.2008 4:52pm
davidbernstein (mail):
orin, at least on the second issue, that's why i wrote "if"
1.6.2008 6:32pm
OrinKerr:
David,

Sorry if I misunderstood. You wrote: "I'd vote to acquit if I were on the jury." I took that to mean that you knew how you would vote based solely on the facts as covered in the news story.
1.6.2008 6:42pm
GoRo:
That is what happens when idiots writing the news. Makes no sense. If Caravan driver (people kill people, not cars) struck, then he/she did not yield. Simple as that.

And the quoted VA statute is amusing. I have to provide my data to any hacker around just being a witness to an accident.
1.6.2008 6:52pm
Mike& (mail):
That is what happens when idiots writing the news. Makes no sense. If Caravan driver (people kill people, not cars) struck, then he/she did not yield. Simple as that.


Did you actually read the summary? "The pedestrian fell onto the Dodge Caravan while trying to avoid being struck by the sedan." In other words, the Caravan did not hit the pedestrian. The pedestrian hit the Caravan. Simple as that.

One hazard of being quick to call someone an idiot is that it often makes the person using that phrase look like the idiot.
1.6.2008 7:18pm
Gary Anderson (mail):
Doesn't that depend on the facts -- facts we simply do not know from the little news blurb you quote? I'm not sure how you know your vote based simply on that short paragraph.

See, and I was thinking DB probably drives a white sedan...

Score another point for not taking responsibility for your actions, and lawyer/professors assuming if you play dumb enough, of course the consequences of your actions are not your fault. Sad DB, simply sad.
1.6.2008 7:28pm
Syd Henderson (mail):
Choy Mu (mail):
Actually, I would expect the authorities to charge the driver of the Dodge Caravan with hit and run, the pedestrian to sue him for damages, ... and win. Hallelujah.


I don't see any evidence from the snippet that the Caravan left the scene of the accident, or was moving, for that matter.
1.6.2008 7:36pm
DavidBernstein (mail):
Just to clarify, now that I'm at my computer and not with an inconvenient PDA: I'd vote to acquit based on reasonable doubt to whether the driver knew he was "involved" in the accident (I suppose if they caught him and he admitted such, that doubt would go away), and also based on the ambiguity in the statute as to whether someone who indirectly causes an accident is really "involved" in the accident. A further point is IF the other vehicle was stationary, and the victim, seeing the "suspect" fail to yield, simply stumbled onto a stationary vehicle, I think it would be extremely difficult, absent an admission from the driver, to conclude beyond a reasonable doubt that he even realized there was an accident. The vast majority of people who stumble onto a stationary object, vehicle or not, don't suffer any injury.
1.6.2008 8:19pm
DavidBernstein (mail):
(And again, no problem convicting him of failing to yield to a pedestrian in a crosswalk. The DC area is full of people who do this, but even more of a hazard are people who blithely walk across the street wearing ipods and headphones paying no attention to traffic.)
1.6.2008 8:21pm
OrinKerr:
David,

We look at this case very differently. First, I think the facts are much more uncertain than you suggest. As far as I can tell, we have absolutely no idea what the evidence is of the driver's knowledge. Maybe it's weak, but maybe it's strong -- we just don't know.

Second, I don't see the ambiguity in "involved." It seems like an intentionally broad phrase that clearly covers a situation like this; the sedan was the proximate cause of the accident and present at the accident, which to me suggests it was clearly "involved."

Of course, I'm not saying that the driver is guilty. I'm just saying that he might be.
1.6.2008 10:20pm
DavidBernstein (mail):
Let's assume the driver is caught, and tells police: "I saw a pedestrian at the last second as I was going through a crosswalk [it's still dark at 6:45 am in December], thanked God I didn't hit her, and then went on my merry way, assuming she was okay." It's hard to imagine what evidence the prosecutor could then bring to dispel reasonable doubt.

As for "involved in an accident," that strikes me as different than "a [proximate] cause of an accident." If my girlfriend insults a guy at the bar, and the guy then comes over and hits me, my girlfriend is a proximate cause of the battery, but I think it's ambiguous as to whether she was "involved" in a barroom brawl.
1.6.2008 10:27pm
DavidBernstein (mail):
Well, on rereading what I wrote, I suppose it's possible that the pedestrian and/or other driver could swear that the driver saw her stumble onto the Caravan, but in that case we still have the issue of whether a reasonable person would understand that someone who WASN'T hit by their car, but stumbled into a stationary[?] other vehicle was "in an accident" in which they had an obligation to stop. [I'm assuming that since the Caravan yielded and the white sedan didn't, the white sedan could not have been directly behind the Caravan, and must have been alongside it.] I'm sure most drivers have ALMOST hit another car or pedestrian or animal, and more than once, and once the incident was immediately over they didn't pull over to ensure that there weren't secondary consequences.
1.6.2008 10:34pm
OrinKerr:
David writes:
Let's assume the driver is caught, and tells police: "I saw a pedestrian at the last second as I was going through a crosswalk [it's still dark at 6:45 am in December], thanked God I didn't hit her, and then went on my merry way, assuming she was okay." It's hard to imagine what evidence the prosecutor could then bring to dispel reasonable doubt.
I disagree. In your hypo, the driver has admitted that he knew he almost hit a pedestrian. He then says (with obvious self-interest) that he just "assumed" that the pedestrian was okay. But there are a lot of possible holes in the story, and we would need to look into them to know if the denial is remotely plausible. I would want his testimony on exactly what he saw, when he saw it, what he heard. I would want testimony from the pedestrian and the driver of the other car about where everyone was located, how much noise the passenger made when he hit the other car, whether the sedan driver was looking in the direction of the pedestrian, whether he later stopped and might have seen the pedestrian injured, just how fast the sedan driver "sped" away, etc. Surely a self-serving statement from a defendant charged with a felony won't just end the case.

Just consider one fact, the speed at which the driver "sped' away. Let's assume that after the sedan drove through the intersection, it slowed down suddenly for about five seconds and then the driver floored it, racing the car as fast as he could from the pedestrian. I would think that would pretty clearly show knowledge of the accident; why else slow down and then suddenly floor it, other than to flee the scene of the accident and avoid liability?
As for "involved in an accident," that strikes me as different than "a [proximate] cause of an accident." If my girlfriend insults a guy at the bar, and the guy then comes over and hits me, my girlfriend is a proximate cause of the battery, but I think it's ambiguous as to whether she was "involved" in a barroom brawl.
I disagree with your premise -- your girlfriend would not be the proximate cause in this hypothetical. She would be a "but for" cause, but not the proximate cause. I teach a case that is vaguely similar -- Velazquez v. State, 561 So.2d 347 (Fla. DCA 1991).
1.6.2008 11:07pm
neurodoc:
Christopher was under the influence of an intoxicant, weaving back and forth, when he swerved to avoid an oncoming car and went off the road and rolled down a hill. IIRC, the kids in the other car realized what had happened, but didn't stop to render assistance. Since the cars did not collide and the kids were not at fault, would they have had any legal liability for failing to stop and at least summonse help? Did Tony's "intervention" to spare Christopher excessive suffering cut off any civil liability that the other party might otherwise have had?
1.6.2008 11:08pm
OrinKerr:
David writes:
Well, on rereading what I wrote, I suppose it's possible that the pedestrian and/or other driver could swear that the driver saw her stumble onto the Caravan, but in that case we still have the issue of whether a reasonable person would understand that someone who WASN'T hit by their car, but stumbled into a stationary[?] other vehicle was "in an accident" in which they had an obligation to stop. [I'm assuming that since the Caravan yielded and the white sedan didn't, the white sedan could not have been directly behind the Caravan, and must have been alongside it.] I'm sure most drivers have ALMOST hit another car or pedestrian or animal, and more than once, and once the incident was immediately over they didn't pull over to ensure that there weren't secondary consequences.
To be sure, even assuming the sedan driver knew he had caused the passenger to hit the other car, the government could decline prosecution or perhaps knock down the charges to a simple moving violation for equitable reasons.
1.6.2008 11:16pm
DavidBernstein (mail):
As Neurodoc's hypo suggests, one could read the statute as suggesting that the kids were "involved" in the accident. My preference is always to read ambiguous language in criminal statutes narrowly.

Anyway, I think we can all agree that the police report to the public would have better read "felony leaving the scene of an accident," not "felony hit and run."
1.7.2008 5:46am
DavidBernstein (mail):
Interesting question re proximate cause: can something be only a but-for cause, but not the proximate cause, if it's the only "cause" of an incident in the general understanding of causation (girlfriend insults thug, thug responds by hitting boyfriend; it's true that there was the "intervening cause" of thug's temper, reluctance to hit a girl, and willingness to take vengeance on innocent boyfriend, but the "cause" of the incident was still the insult).
1.7.2008 5:49am
Don Miller (mail) (www):
There was a similar case in Boise ID just over a year ago.

Two vehicles were speeding down the highway, speeds approaching 100mph. The first vehicle was driven by a popular BSU football player.

A third car pulled onto the highway. The first car swerved and missed the third car. The second vehicle hit the third car and killed the whole family in the vehicle.

The drivers of the second and third vehicles all tested at or above the legal limit for alcohol. The driver of the third vehicle also tested positive for meth.

The prosecutor originally charged the the driver of the first vehicle with 3 manslaughter counts and felony leaving the scene of an accident. Eventually the first driver pled guilty to leaving the scene and was given some jail time, fine and 5 yr probation. The prosecutors position was that under Idaho law, if you witness an accident, you have a duty to stop and render aid. This is not supported by my understanding of how the law has been interpreted before, but that was his position in this case.

The driver of the first vehicle knew he had screwed up and felt he had some responsibility. That is probably why he eventually pled guilty to a charge that he could accept.

For more information, Google "Cam Hall" "Perfect Family"
1.7.2008 10:41am
Gary Anderson (mail):
I think Orin and DB are misinterpreting facts to fit their neat conclusions. Say you read it like this:

Passenger crossing on designated crosswalk. Bright enough out that anyone with good eyesight (or corrected) can see person well ahead. Caravan sees pedestrian, stops. White sedan is speeding, only sees passenger at too-late point. The pedestrian LEAPS OUT OF THE WAY of the speeding car, into the van. (DB is essentially blaming the victim -- as if they stumble-bumbled into the van, rather than alertly jumping out of the way of a car obviously not going to stop).

I'm with ya on the dumb kids with ipods, and those not looking before crossing.

But if you think White Sedan driver gets to blithely speed away, or face a "Not Yielding" penalty -- as opposed to owning up and accepting their actions and negligance caused deliberate injury to someone who but not for their leaping out of the way would have been splattered... It's good you're in academia.

Orin K.: You'll be a lot more fun when you learn to grow a spine. There's something buried deep in there -- some inkling of responsibility or non-fear gene, perhaps, but you're content on so many issues to lean back and genially agree.

Say if was your wife leaping out of the way: still want to let Mr. White Sedan off for the actions he clearly caused? And yeah -- it was akin to a hit-and-run. Stupidity, or ignorance of the consequences you leave in your rear-view mirror, are no exuse. You ran, baby. In ignorance or not. And these are the injuries/damages left in your wake. No slap onthe wrist for that.
1.7.2008 11:27am
OrinKerr:
DB asks:
Interesting question re proximate cause: can something be only a but-for cause, but not the proximate cause, if it's the only "cause" of an incident in the general understanding of causation (girlfriend insults thug, thug responds by hitting boyfriend; it's true that there was the "intervening cause" of thug's temper, reluctance to hit a girl, and willingness to take vengeance on innocent boyfriend, but the "cause" of the incident was still the insult).
The answer in criminal law is clearly yes, I think.

Gary Anderson,

Given that you and I appear to agree, I do not understand why you seem so dismissive of my opinion. I suppose we do disagree to the extent you seem certain of the facts: Your hypo is possible, but of course there are many other possibilities. Sorry if you find such a lack of knowledge unsettling, but I generally find it is better to admit not knowing than to fake omniscience. Of course, I understand if you prefer the latter.
1.7.2008 1:43pm
Toby:
I don't feel quite as strong as that, but letsup the ante a little.

Tomorrow it is reported that the not badly injured driver who fell onto the car has miscarried...

Still a no hamr no foul situation? If so, what facts changed?
1.7.2008 1:49pm
hattio1:
Professor Bernstein says;

I'd vote to acquit... and also based on the ambiguity in the statute as to whether someone who indirectly causes an accident is really "involved" in the accident.

Wouldn't the ambiguity to the statute likely be resolved pre-trial as a motion to acquit? I dont' think you as a juror would get a vote on the ambiguity of the statute.
That being said, I'd love to have you on a jury. Any chance you'll move to my jurisdiction?

Gary Anderson,
I often disagree with both of the good professors here. But I try not to be rude about it. And if I were to be rude about it, I'd try to make sure I at least understood their positions. Professor Kerr is not saying to let the guy go. Reading comprehension is a plus.
1.7.2008 1:54pm
DavidBernstien (mail):
Orin, I'll defer to you on proximate cause in criminal law, which I don't know anything about.

As for Gary Anderson, given that it's dark at 6:45 AM in early December (sunrise on December 4 was 7:10 am, isn't the internet amazing?), your "interpretation" immediately fails to match the facts.
1.7.2008 2:11pm
Gary Anderson (mail):
Bright enough out that anyone with good eyesight (or corrected) can see person well ahead.

DB:

Listen buddy, if you can't see very well until it's complete daylight, you really shouldn't take on the responsibility of getting behind the wheel of a car. With headlights on, your vision shouldn't be impaired at any hour. Otherwise, if you slide behind the wheel, you accept responsibility for your actions. (You ever been up at "sunrise" my friend? It's not exactly pitch dark in those daybreak hours. Isn't common knowledge and accepting responsibility for your actions an amazing thing? Someday, you'll see it. Sadly, sometimes it takes identification with the victim, not the poor eyesight fleeing driver, for some to get it. Hence, my your wife/child comment. Put somebody you love in that pedestrian's place, injured leaping out of the way of a visibly impaired early-morning driver who then leaves the scene... your analysis change much? Your sympathy still with getting the driver off with a "failure to yield" wrist slap? )

Orin:

We did agree originally. Until for whatever reason, you backed down from DB in agreement.

"To be sure, even assuming the sedan driver knew he had caused the passenger to hit the other car, the government could decline prosecution or perhaps knock down the charges to a simple moving violation for equitable reasons."

Smells like funny justice to me, "for equitable reasons" nonetheless. Pay for your own actions, drivers, or else take the bus/cab/chaffeured sedan. Most jurors aren't as lenient as these softie law profs.

Why so quick to back down and concede it's not necessary to bring charges when a poor driver clearly injures someone and flees the scene?
1.8.2008 5:51pm