Pedestrian hit


Responsabilidad objetiva del conductor por constituir la conducción una conducta de riesgo

Qualitative and quantitative entity of the behavior of the driver determining the accident in the face of negligent behavior of the pedestrian of little entity or little relevance prevents exonerating the driver or giving rise to the concurrence of blame.

Pedestrian behaviors such as crossing a red light or in unauthorized places must be addressed in the specific case as it occurred and in what circumstances to consider whether or not they have a relevant entity for the purposes of the exclusive fault of the driver, exclusive fault of the pedestrian or concurrence of faults STS Civil Chamber Section 1 dated December 12, 2008.

Importance of the negligence of the victim in the imputation to the driver of the personal damages derived from the circulation .

The art. 1.1 I and II LRCSVM establishes a criterion for imputation of the responsibility derived from damages to people caused by the circulation based on the objective principle of the creation of risk by driving . The imputation to the agent of the damage caused is ordinarily excluded, in a context of liability for negligence, due to the fact that the damages causally connected to the harmful event are not foreseeable (to which is added the power of moderation of the amount of compensation of ordered by the judge: article 1103 CC). This regime is not applicable to the strict liability regime of the driver for the risks originated by reason of circulation.

The liability regime for personal injury arising from traffic (article 1.1 II LRCSVM) only excludes objective imputation when the conduct or negligence of the injured party interferes in the causal chain (when the damage is due solely to them) or force majeure extraneous to the driving and operation of the vehicle , except, in the first case, that the driver's negligence also concurs, since then the equitable moderation of responsibility and the distribution of the amount of compensation is appropriate (article 1.1 IV LRCSVM). The causal interference of the determining victim of the lack of objective imputability to the driver or of the reduction of the degree of this is not always characterized with a reference to the 'conduct' or the 'negligence' of the injured party and, to the possible 'negligence' of the driver, as article 1.2 LRCSVM does, within what the LRCSVM calls 'concurrent faults', since it is not a question of compensation of faults, but of concurrence of faults in a context of strict liability. In the first Annex, number two, LRCSVM establishes that "[t]he fault of the victim will be equated to the case in which, being the victim unaccountable, the accident is due to his conduct or concurs with it in its production" and in the Annex, first, number 7, LRCSVM is considered as 'decreasing corrective element' «the concurrence of the victim himself in the production of the accident or in the aggravation of its consequences».

The legal references to the negligence of the driver, to the fault of the victim, or to concurrent faults determine that sometimes the driver's responsibility is classified as quasi-objective for the reason that a criterion of subjective responsibility in relation to the victim is understood to be applicable. when he incurs exclusive or concurrent fault with that of the driver (as STC 181/2000 seems to imply when it argues, in relation to the liability derived from the circulation of motor vehicles, in the field of interpretation of the ordinary legality that does not bind us, that "fault is a title of imputation [...]").

However, this consideration is hardly compatible with the principle according to which the driver of a motor vehicle responds objectively by reason of the risk caused . The principle of strict liability for risk limits in any case the absence of imputation ("will be exonerated") to cases in which the decisive intervention of the victim allows ruling out, in whole or in part, the objective imputation of the accident to the driver as a product of the risk caused by the traffic (which will only occur in cases of intentionality or negligence of the victim or causal interference of his conduct of sufficient seriousness so that it can be considered as an act unrelated to driving or operating the vehicle).

In the case of traffic accidents with victims unrelated to vehicle traffic , as is the case of pedestrians , the interpretation that the driver 's responsibility is parallel to the negligent victim 's responsibility must be rejected , since the absence or moderation of the responsibility of the former derives from the lack of objective imputation despite the risk created, and not from a subjective responsibility of the driver parallel to the possible subjective responsibility of the victim for the damage caused. As a consequence, we must conclude thatthe doctrine of those Provincial Courts that maintain that the exemption from liability of the driver or the concurrence of faults provided for in article 1 LRCSVM is not applicable, at least when, contributing to the production of the result two behaviors, that of the driver of the motor vehicle and that of the victim outside the circulation of these vehicles, the conduct of the driver is of such a quantitative and qualitative entity that it constitutes the determining cause of the collision , even when there is a causal contribution of the victim of little entity or disproportionate in relation to that of the driver of the motor vehicle.

The application of this doctrine to the case under examination leads to the conclusion that, based on the detailed list of proven facts made by the judgment under appeal, in exercise of its function of definitive assessment of the evidence , the conduct of the driver was decisive, in the plane of the objective imputation derived from the assumption of the risks of circulation, of the caused fact; and that the negligence of the pedestrian had a secondary character that makes it insufficient to reduce or eliminate the imputation of the damages caused to the first. In effect, as the aforementioned judgment underlines, the car followed an anomalous trajectory in the moment prior to the accident, lurching from one side of the road to the other; did not observe the need for a particularly prudent and defensive circulation required by the circumstances (night of patron saint festivities, crossing the urban center with an intersection and the presence of pedestrians); and if the vehicle had correctly followed its path through its lane normally or had warned the pedestrian of its presence or circulated with lighting and at a speed that allowed it to stop its vehicle within the field of vision or at least react more appropriately to the presence of the pedestrian, the final result produced would have been avoided.

Given the relevance of this conduct of the driver, whose responsibility must be measured, as a passive subject of the imputation, in accordance with a criterion of strict liability for the risks of driving , the negligence of the pedestrian, consisting of entering the road on the one hand for which it was not foreseeable that the vehicle circulated , and in circumstances that imposed special precautionary duties on a driver , has a secondary character that prevents attributing relevance to the effects of exempting the driver from the imputation of the damage caused as someone else, in all or in part, to its strict liability for the risks of circulation (.....)"