Quite often, tragic events lead to the creation of a new law. In October of 2017, a young mother by the name of Lisa Torry Smith was walking her son to his elementary school in Missouri City, a community near Houston. While in a crosswalk, a car that was making a left hand turn into the intersection struck them both, killing Lisa and severely injuring her son. The driver was charged with criminally negligent homicide but the grand jury failed to indict, allowing the driver to escape criminal responsibility. In response to the uproar that ensued, the Texas legislature drafted new legislation which became law in 2021 and is known as the Lisa Torry Smith Act.
The Lisa Torry Smith Act and Its Consequences
Statistics:
According to the Texas Department of Transportation, pedestrian deaths rose 30% from 2018 to 2022. Their study noted that in 2022 there were 5,766 auto/pedestrian accidents resulting in 830 deaths and 1,526 serious injuries. As a personal injury attorney with years of experience practicing in Houston, I can tell you these tragedies happen far too often.
Before The New Law
Prior to the new law, section 544.007 of the Texas Transportation Code required drivers who are proceeding through an intersection or turning right or left at an intersection, to “yield the right of way to other vehicles and pedestrians”.
After The New Law
The new law amended this section of the Code to require drivers to “stop and yield the right of way to pedestrians lawfully in the intersection or an adjacent crosswalk.” The new law also added a new section to the transportation code – Section 545.428, which states: “a person commits an offense if the person with criminal negligence: (1) operates a motor vehicle within the area of a crosswalk; and (2) causes bodily injury to a pedestrian or a person operating a bicycle, motor-assisted scooter, electronic personal assistive mobility device, neighborhood electric vehicle, or golf cart”. If the offense results in bodily injury, it is punished as a misdemeanor, and if it results in serious bodily injury it is punished as a state jail felony. Lastly, this section provides an affirmative defense if the pedestrian was violating the law regarding the crosswalks or roadways at the time of the collision.
Does This Law Make it Easier to Charge A Violator With a Criminal Offense?
In my opinion, the answer is no. Section 545.428 (b) requires the state to prove that the driver causing injury at a crosswalk acted with criminal negligence. Specifically, the statute states: “A person commits an offense if the person with criminal negligence ….”. The statute did not change the definition of criminal negligence which has been in existence for a long time. It is found in Section 6.03(d) of the Texas Penal Code and states: “A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”
Making Sense of the Definition
This awkward definition is what the jury receives as part of the jury charge. There is a lot to unpack here, but the important phrases are: “ought to be aware of a substantial and unjustifiable risk”, “gross deviation from the standard of care that an ordinary person would exercise” and “as viewed from the actor’s standpoint”. There is no way to simplify the definition. Each juror has to wrestle with it and apply common sense based on his or her life experience.
When I was a young Assistant District Attorney our rule of thumb was that if we could prove the defendant violated at least two traffic statutes, we could accept the case and take it to trial. Otherwise, no matter how tragic, there were no criminal consequences, only civil. Likewise, under this new law, I would think just one driving violation (not two minor ones, for that matter) will not result in criminal charges. It would have to be something egregious, such as speeding way over the limit, racing, texting while driving, or being under the influence but not to the point of being intoxicated as defined in the DWI statute. District Attorneys will have to look closely at all the facts and decide on a case-by-case basis.
If There are no Criminal Charges, Can I Still Sue?
The answer is yes. Our legal system is divided into criminal law and civil law. The idea behind our criminal system is that a crime is a wrong against society in general even though there may have been one individual victim. The idea behind our civil system is that any individual can have legal recourse for a wrong committed against that individual, whether or not that wrong amounts to a crime. A criminal defendant is either found guilty or not guilty. A civil defendant is either found liable or not liable. If found guilty, a criminal defendant can be fined and/or jailed. Any fines are paid to the state, county, or municipality, not the victim. If found liable, a civil defendant can be made to pay money directly to the plaintiff. The decision whether to file charges in a criminal case is up to the District or County Attorney, or a grand jury in the case of felonies. The decision to file a civil case is made by an individual private attorney who is guided only by rules prohibiting frivolous suits.
Can There Be Both, a Criminal Case and a Civil Case?
Yes, the same occurrence can give rise to both criminal and civil actions. In a crosswalk accident, for example, the District Attorney, representing all of the residents of the county, can proceed with a criminal case against the driver, and a civil attorney representing the victim or the victim’s survivors, can proceed with a civil case against the driver.
Contact Us
It is my hope that this new law will help reduce deaths and serious injuries. There is a public campaign to make people aware of this law and perhaps this will help. Hopefully, pedestrians as well as drivers will take extra care in crossing our streets. Having seen tragic accidents many times in my career both as a prosecutor and as a personal injury attorney, I welcome any law that can make our streets safer. In over forty years of practicing law, I have successfully handled many cases involving serious injury and death. If you or a loved one have been the victim of an auto/pedestrian accident, give me a call and I will answer your questions and explain your legal rights.