2 Benicia Children Struck By Car While Crossing Street

Two children were struck by a car last night while they crossed the street in Benicia. A 15-year-old girl remains in critical condition at John Muir in Walnut Creek and a 14-year-old boy is in stable condition. According to Benicia police, the road is "notorious" for the setting sun blinding drivers. Another report indicates that the girl was thrown 50-75 feet by the impact.

Beyond the obvious thoughts and prayers for the injured children and their families, three legal issues questions arise from this accident: 1) What should a driver do when he or she cannot see?; 2) If the street is "notorious" for blinding drivers, is the city or county in any way liable?; and, 3) What are a pedestrian's duties and obligations when crossing the street?

First, drivers are obligated to keep a lookout. If you cannot see because of the sub, because of fog, rain or any other impediment, you clearly cannot keep a lookout. Drivers are obligated to keep a lookout for pedestrians at all times, even when they are jay walking (Vehicle Code Sections 21950, 21954). Furthter, they are obligated to drive at a speed that is safe given the conditions, including visibility. (Vehicle Code Section 22350).

Under a case called Bonano, a public entity may be liable "for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that the public entity had actual or constructive notice of the dangerous condition under section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." Bonano 30 Cal.4^th139, 146. In other words, if the city, county or other other political subdivision or government agent knew it was dangerous, had time to fix the problem and chose not to, it may be liable. Dangerous intersection are all over the place, and subject of frequent complaints.

Pedestrians are obligated to give the right of way to cars when crossing without the aid of a crosswalk. (Vehicle Code Sections 21953, 21954). Although pedestrians have the right of way when crossing the street in a crosswalk, they still are obligated to pay attention to what is going on around them. (Vehicle Code Section 21950(b)).