"x x x.
In our March 2009 issue, Atty. Consunji answered the following question: "If I accidentally hit a jaywalker in a no-pedestrian zone--say, the expressway--am I free from incrimination?"
Here's our columnist's reply in full, in italics:
No, you are not automatically off the hook just because the person you hit was jaywalking. But you can avoid the criminal and civil liabilities if, despite driving with due care, the injury or death was caused by mere accident. In short, it can be a defense of the exempting circumstance of an accident.
On the other hand, the jaywalker or his/her heirs can have a case against you if you were negligent--e.g. you were driving over the speed limit, or you reasonably should have seen the jaywalker and avoided the collision. In this instance, it will be a case against you for gross negligence, resulting in injury or death.
The expressway is a "limited-access facility" and is designed for vehicles to efficiently move from point A to point B in accordance with some rules. Pedestrians are prohibited from entering or exiting the expressway from or to the adjoining real estate, except at designated points. A pedestrian is jaywalking when he or she walks on a prohibited spot along an expressway.
As such, it is just reasonable for a driver to expect no pedestrian inside the expressway.
However, the driver still has the duty to exercise due care for the safety of any pedestrian, including jaywalkers, in a limited-access facility. Conversely, a pedestrian has the duty to comply with expressway regulations.
In claiming that it was an accident, you will have to show that it is something that happened outside the sway of your will, and that it lies beyond the bounds ofhumanly foreseeable consequences. Thus, a "person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it," is exempted from criminal liability under the Revised Penal Code. If the consequences are foreseeable, it will be a case of negligence.
The adversaries will argue for and against the presumption that the motorist acted negligently simply because a harmful incident occurred. This presumption arises only if (1) the thing that caused the incident was under the defendant’s control; (2) the incident could happen only as a result of a careless act; and (3) the plaintiff’s (the pedestrian) behavior did not contribute to the incident.
The key question is: Were you driving with due care? For a good defense, you will have to prove circumstances such as the following: Your car was in good operating condition, without any modification that impaired its safe operation; you hold a valid driver’s licence; you are in good health; you have the correct prescription lenses or eyeglasses (in case you wear a pair); you were not under the influence of alcohol, medication or prohibited drugs; you were not distracted by the car’s entertainment system or by a passenger; you were not using your cell phone, or smoking, or eating, or drinking; the car was traveling within the speed limit; the car’s window tint was within the acceptable safety standards for visibility; the car was in the correct lane of the expressway; you availed of every opportunity to avoid the jaywalker or slow down the car; and you took all steps possible to get medical attention to the jaywalker.
In short, you will have to prove that you were the perfect driver without any violation, and that your vehicle had been maintained according to the manufacturer’s standards.
x x x."
