An accident out of Clarksville, Tennessee sounds as if it were written for a torts exam. Around 5 pm, a car hit a deer in downtown Clarksville and sent the deer flying. The deer then landed on a pedestrian who had to go to a hospital for broken bones.
Clarksville Police spokeswoman Officer Natalie Hall dryly remarked “This is not a type of crash that happens often.” I would hope so.
The first question is whether the driver was negligent in hitting the deer. If so, the question becomes one of proximate cause since there is no factual causation question that the alleged act of negligence cased the injuries.
The Second Restatement of Torts adopted what is often called the “Cardozo Rule” of proximate causation:
“If the actor’s conduct creates a recognizable risk of harm only to a particular class of person, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the persons so injured.”
Assuming that this was an act of negligence in hitting the deer (and there is no evidence of such negligence at this time), the risk of being hit by a flying deer is not so remote as to be unforeseeable in my view.
Of course, deer often do not require a car to take out humans, as runners learned recently:
What do you think?
I was doing the speed limit (55 mph) on a two-lane highway east of Payson, Arizona, when I encountered not just one, but a whole herd of deer crossing the road. I had no time to stop, so I tried to steer my way through them. I zigged left, then right, then left, and then right again as I dodged one deer after another. I remember seeing the butt of one doe going by my driver’s window about a foot away. It was at night, so perhaps the “deer in the headlights” effect kept them from suddenly running in front of me, and there was just enough room between each of them for me to get through them all. I felt lucky that my reflexes were fast enough and I was driving a Camaro which was built to hug the road. It handled the maneuver safely with no skidding or sliding, probably also due to its anti-lock brakes. When I cleared the herd, I noticed I was still doing 40 mph. There had been no impact, and no injuries (to myself or the deer) and no damage, so I continued on home. The event simply gave me an incredible experience I will remember forever.
Tyger Gilbert – white tail or mule deer? Or were you too busy steering to notice? 😉
Was it truly a deer? Or was it one of these post-election traumatized snowflakes self-identifying as a deer?
If you get hit by a poor flying deer, it’s an accident, and you shouldn’t sue anybody.
I was driving on a winding road at night in Malibu one night, and a stag leapt down a steep cliff, crossed the road in one bound, and then sprang up the other side before I even touched the brake. Just a flash and it was gone, luckily.
I’m assuming the deer didn’t make it.
I discovered a dead deer in my driveway. I called the town and they sent an inspector. His opinion was the deer had been hit but tried to escape, dying on my driveway. The town only removes dead deer from he roads. Long story short I paid $75 (in 1992, probably $200 by now) for someone to remove the deer. It might have been covered by home insurance, but your coverage would go up, right? If both parties have insurance, those companies will fight it out over whose coverage applies.
Sandra Hemming – I would have dragged the deer into the street. 🙂
Tried that, deer’s leg came off. It was probably 50+ feet, uphill through trees to the highway. My husband was out of town, naturally. The town man covered it with lime to cover odor. By the time someone came the deer came apart at remaining legs. The fun of living in the country. Living in CA now and haven’t seen any deer.
Some years ago, I was traveling across western PA on I-80. For about 30 or 40 miles, there were at least two dead deer PER MILE. It was pretty gory. There was a war, and the deer lost …..
I’m appalled that there is no concern here for the deer. Or did it manage to avoid a trip to the hospital for broken bones.
Pascal’s Mouse – if you have seen one deer (alive or dead) you have seen them all. 😉
Growing up in deer country, it is always the deer’s fault. 😉
I have had many opportunities to interact with deer. I found that tooting my horn worked. The deer went away from the road.It was very handy on the really foggy nights. My only actual interaction with a deer was when one ran into me and mangled the left front of my car, back to the mirror. The deer did not survive. I was not tooting my horn because I no reason to believe that a deer was in the area.
Cars hitting deer are a big problem in Wisconsin. They’re overpopulated. Deer season started on Saturday. Insurance companies pay out many claims on deer v auto crashes. Well, back in the 80’s someone invented a deer whistle that was supposed to scare deer away. They were these plastic whistles you attached to your front bumper that reportedly would make a high pitched noise that would scare deer away from the road. Insurance companies bought millions and gave them to customers for free. It was a scam. They didn’t work. All they did is come off in car washes and clog up the drains.
As I understand it, deer hunting season in Wisconsin is a religious holiday, and many enterprises grind to a halt for a few days ….
JayS, It is akin to a religious holiday. And children are often excused from school to go hunting. I doubt it’s still the case, but during potato picking season in Maine, schools would close for a week so kids could help w/ the harvest. I assume there are machines that now do that. Or Mexicans.
A former co-worker of mine was in a freak accident involving a deer: A buck deer was trying to cross a multi-lane suburban road. It almost made it, but got thrown into the air by the last car. Coming down, the deer stuck my co-worker’s car at an angle, shattering the windshield and side window, and pinning my co-worker’s shoulder to the seat with the point of an antler.
My co-worker’s insurance company did not want to pay a claim for the car damage, because “you hit a deer.”
“No, the DEER HIT ME !!”
Sue the city.
From my experience I have never seen nor heard of a driver served a traffic citation for hitting deer. These from a traffic enforcement perspective collisions as these are seen as unavoidable collisions. In fact, from the point of view of odds, a vehicle the size of passenger car or above it is often better to hit the deer than to risk going into oncoming traffic or leaving the roadway if the driver is unable to avoid the collision in a safe manner. Motorcycles are certainly more dangerous to be driving upon striking deer. Also, elk collisions, horses, and cattle present significantly higher risk during collisions.
A diversion from this enforcement practice would be the case of DUI, Reckless Driving and to a lesser extent Negligent Driving. Sometimes criminal or civil traffic liability to the state is triggered by DUI alone regardless of cause or perhaps in the case of Hit and Run. With the cases of Reckless and of Negligent Driving from my perspective if the proximate cause of the deer strike was due to excessive speed or unsafe driving, as opposed to a person driving under normal speed, the liability to the state would be how likely the deer strike was avoided by a safe driver and the reckless driving aggravated the chances for collision.
Interestingly, if it was determined that the recklessness was a proximate cause of the deer strike, the injury to the pedestrian could be prosecuted as a vehicular assault since serious bodily injury resulted, as is mentioned in this case. However, I believe such a prosecution for anything under a DUI might result in an acquittal by a jury.
If the driver was speeding or breaking the law, then I’d say the driver is negligent.
If the driver was not speeding or otherwise breaking the law, I’d consider it an act of god.
Who would the pedestrian sue if the deer just charged her?
Who should the car driver sue for being hit by the deer if the car driver was not speeding or otherwise breaking the law?
What sort of legal system would let the pedestrian sue the driver, but would have the driver not able to sue anyone?
So, who had venison for dinner that night?
Oh, I hope the deer survived! The pedestrian should get no bucks or doe from the driver. The deer was an intervening cause.
Squeeky Fromm
Girl Reporter