Halloween is the deadliest night of the year for children on foot. For children ages 4 to 8, the risk was about ten times higher. Georgia law requires every driver to exercise due care to avoid colliding with any pedestrian and to “exercise proper precaution upon observing any child.”
Halloween is right around the corner and it is a happy night for many children.
It is also the deadliest night of the year for children on foot.
Researchers writing in JAMA Pediatrics looked at 42 years of fatal crash data in the United States, from 1975 through 2016. They compared Halloween evening, from 5 p.m. to midnight, with the same hours one week before and one week after. The risk of a pedestrian death was 43 percent higher on Halloween. For children ages 4 to 8, the risk was about ten times higher.
Those are not my numbers. They are the numbers. And behind every one of them is a family.
This post is about why it happens, what Georgia law says about who is responsible, and what to do if it happens to your child.
Why Halloween is so dangerous
It is dark, costumes are dark, and masks block vision. Children dart, many Georgia subdivisions have no sidewalks, and drivers are distracted, rushed, or impaired.
The reasons are not mysterious.
- It is dark. Trick-or-treating starts at dusk and runs into full darkness.
- Costumes are dark, and masks block vision. A child in a black witch’s dress is close to invisible to a driver. A child in a rubber mask cannot see the car coming from the side.
- Children dart. They cross mid-block, between parked cars, and from one side of the street to the other because the house with the full-size candy bars is over there.
- Many Georgia subdivisions have no sidewalks. Children walk in the street because there is nowhere else to walk.
- Drivers are distracted, rushed, or impaired. People are driving to parties, home from parties, and looking at their phones for the address.
A driver who knows it is Halloween knows all of this too. That matters.
What Georgia law expects of a driver
O.C.G.A. § 40-6-93 says every driver shall exercise due care to avoid colliding with any pedestrian and shall “exercise proper precaution upon observing any child.” A child who runs into the street mid-block may have broken a pedestrian rule. That does not end the case.
Georgia does not let a driver assume the road is clear.
O.C.G.A. § 40-6-93 says that, notwithstanding the other rules of the road, every driver shall exercise due care to avoid colliding with any pedestrian. It goes further. The driver shall “exercise proper precaution upon observing any child.”
Read that again. The legislature singled out children. A driver who sees a child near the road has a heightened duty to slow down, to watch, and to be ready to stop.
A child who runs into the street mid-block may have broken a pedestrian rule. That does not end the case. A driver who should have seen the child, and could have avoided the child, can still be responsible.
On Halloween night, in a neighborhood full of trick-or-treaters, a reasonable driver slows to a crawl. A driver who does not is taking a risk with someone else’s child.
Can my child be blamed?
It depends on your child’s age. Very young children, four and under, cannot be charged with negligence at all. Under O.C.G.A. § 51-1-5, a child under 14 is judged by the care that child’s own mental and physical capacity fits him to exercise.
The insurance company for the driver will often try. “He ran right out in front of me.”
Whether that argument goes anywhere depends on your child’s age.
I have written before about Georgia’s tender years doctrine. Very young children, four and under, cannot be charged with negligence at all. For children older than six, it is less clear. Under O.C.G.A. § 51-1-5, a child under 14 is judged by the care that child’s own mental and physical capacity fits him to exercise. Not an adult’s care. A child’s. Whether a particular child was capable of protecting himself is usually a question for the jury.
This matters because Georgia uses comparative fault. Under O.C.G.A. § 51-12-33, if the injured person is found partly at fault, the damages are reduced by that percentage. If the injured person is found 50 percent or more at fault, there is no recovery at all.
So the insurance company has every reason to make your child look careless. Your job, and your lawyer’s job, is to make sure the full story gets told: the darkness, the speed, the phone, the neighborhood full of children the driver knew were there.
When the driver was drinking
The punitive damages cap does not apply when the defendant acted while under the influence of alcohol or drugs. Under O.C.G.A. § 51-1-40, the person who served the driver may also be responsible.
Halloween is a party night for adults, too.
If the driver was impaired, Georgia law opens doors that are otherwise closed.
Punitive damages are ordinarily capped in Georgia. The cap does not apply when the defendant acted while under the influence of alcohol or drugs. O.C.G.A. § 51-12-5.1(f).
The person who served the driver may also be responsible. Under Georgia’s dram shop statute, O.C.G.A. § 51-1-40, a person who willfully, knowingly, and unlawfully sells or furnishes alcohol to a minor, or knowingly serves someone who is noticeably intoxicated, knowing that person will soon be driving, can be liable for the harm that follows. That can include a bar. It can also include the host of a Halloween party.
These claims depend on evidence that disappears fast: receipts, bar tabs, witness memories, and social media posts from the party. Move quickly.
When the driver does not stop
If the driver is never found, your own uninsured motorist (UM) coverage may pay. Report the crash to police right away.
Hit-and-run crashes happen on Halloween like every other night. Maybe more.
If the driver is never found, your own uninsured motorist (UM) coverage may pay. That coverage generally applies to members of your household even when they are on foot. Report the crash to police right away. Do not wait.
UM claims have their own traps. If the driver is later found and has insurance, be very careful what you sign. I recently wrote about a Georgia case where one missing sentence in a release cost a client her UM claim.
Injuries on someone’s porch or yard
A child who walks up to a neighbor’s door to trick-or-treat is usually treated as a licensee under Georgia law. A business that invites the public in owes ordinary care to keep its premises safe.
Not every Halloween injury involves a car. Children trip on unlit steps, fall from porches, and get burned by candles in jack-o’-lanterns.
A child who walks up to a neighbor’s door to trick-or-treat is usually treated as a licensee under Georgia law. That is a lower duty than a business owes a customer. Under O.C.G.A. § 51-3-2, the owner is liable to a licensee for willful or wanton injury, which can include knowingly leaving a hidden danger in the child’s path. A paid haunted house or a commercial Halloween event is a different matter. A business that invites the public in owes ordinary care to keep its premises safe. O.C.G.A. § 51-3-1.
If your child is hurt at another family’s home, their homeowner’s policy may have no-fault medical payments coverage. I explained how that works here.
If your child is hit: what to do now
Get your child medical care, get the police report number and witnesses’ names, and ask neighbors for doorbell and security camera video now. Keep the costume. Do not give a recorded statement to the driver’s insurance company before you talk to a lawyer.
- Call 911 and get your child medical care. Head injuries in children are often missed at first. Follow up, even if your child seems fine.
- Get the police report number and the names of the officers.
- Get witnesses’ names and phone numbers. On Halloween, the street is full of parents. They saw what happened. They will scatter by morning.
- Ask neighbors for doorbell and security camera video, and ask now. Many systems overwrite footage within days. This is often the single most important evidence in a child pedestrian case.
- Keep the costume. Do not wash it or throw it away. Its color, its reflective strips or lack of them, and the condition it is in after the crash can all be evidence.
- Photograph the scene at night, at the same hour, so the lighting is accurate.
- Do not give a recorded statement to the driver’s insurance company before you talk to a lawyer.
Remember, too, that there are two claims: your child’s claim for pain and suffering, and your claim for the medical bills. They run on different clocks. I explained why in The Minor Tolling Statute in Georgia: Your Child’s Deadline Is Not Your Deadline.
A few things that actually help
Give every child a flashlight or a glow stick, use face paint instead of masks, cross at corners, and walk with children under 12. If you are driving, drive like every shadow is a child.
None of this is meant to scare you out of trick-or-treating. The researchers who found the Halloween spike did not recommend canceling Halloween. They recommended safer streets.
On the night itself:
- Give every child a flashlight or a glow stick, and put reflective tape on dark costumes.
- Use face paint instead of masks when you can.
- Cross at corners. Teach the children to stay on one side of the street and work their way down it.
- Walk with children under 12. Walk on the street side of them.
- If you are driving, drive like every shadow is a child. On Halloween, it might be.
Attorney Pete Pearson has practiced personal injury law in Georgia since 1996. He has a special interest in helping families of injured children. He is a father of ten and lives with his wife and children in Newborn, Georgia.
If you need to talk, my direct line is Six-Seven-Eight 358-2564, or email pete@petepearsonlaw.com.