Parking Lot Crashes: Who Is at Fault When No One Is on a 'Road'?

Published March 19, 2019 · Injury Law Basics

It happens in the time it takes to pull out of a space at the Dayton Mall or cut across the Kroger lot toward the exit. One car is backing up, another is rolling down the lane, and suddenly there is a crunch of metal and a passenger with a neck injury. The police may not even come. And within a day or two, an insurance adjuster tells you what adjusters say about nearly every parking lot collision: "Both drivers were moving, so it's 50/50."

That is a negotiating position, not the law. Parking lot crashes are decided under ordinary negligence rules, and good evidence often shows that one driver was far more at fault than the other.

Why many traffic laws do not apply in a private lot

Ohio's traffic code, Chapter 4511 of the Revised Code, is built around "streets" and "highways." Under the definitions in effect today, R.C. 4511.01(BB) defines a street or highway as the entire width between the boundary lines of every way open to the public as a thoroughfare for vehicles. Division (DD) separately defines a "private road or driveway" as a privately owned way used by the owner and people with the owner's permission.

A shopping center lot is usually private property. Many of the familiar rules of the road, such as stop-sign and right-of-way statutes written for intersections of public streets, were drafted for highways and do not apply in a lot by their own terms. That is why police officers sometimes decline to write a citation, or even a full crash report, for a collision that happened entirely on private property.

Not every statute stops at the curb. Ohio's rule requiring drivers to stay in reasonable control of their vehicles, R.C. 4511.202, expressly applies on any street, highway, or "property open to the public for vehicular traffic," which describes most store and mall lots. And the moment a driver leaves the lot, R.C. 4511.44(A) requires a vehicle entering a highway from somewhere other than another roadway to yield to all traffic approaching on that road.

Ordinary negligence fills the gap

When a specific traffic statute does not apply, fault is decided the way most injury cases are decided: by asking whether each driver used ordinary care, meaning the care a reasonably careful person would use in the same situation. Juries and adjusters often look to the traffic rules anyway, not as binding law but as a sensible measure of what careful driving looks like.

In practice, that means the common patterns in parking lot crashes have fairly predictable answers.

Through lanes versus feeder lanes

Most large lots have main travel lanes, the wide aisles that run along the storefronts or toward the exits, and smaller feeder lanes between rows of parked cars. Drivers in a through lane generally have the better claim to the right of way, and a driver coming out of a feeder lane is expected to stop, look, and wait, much like a driver at a stop sign. Painted stop bars, arrows, and posted signs in the lot are strong evidence of what the owner expected drivers to do, even if they are not enforceable traffic-control devices on a public road.

Backing out of a space

A driver who is backing up has a heavy duty to look and to yield to traffic already moving in the lane. Backing drivers have limited visibility, and the law expects them to compensate by going slowly and making sure the path is clear. If you were driving down a lane and someone backed into the side of your car, the backing driver is usually the one at fault.

Two cars backing at the same time

The hardest scenario is two drivers backing out of facing spaces who meet in the middle. This is the case where a shared-fault result is most likely. Even here, the details matter: who started first, who was moving and who had stopped, how fast each was going. Video often answers those questions.

Pedestrians struck in a lot

Parking lots are full of people on foot, often carrying bags or walking with children. A driver in a lot must watch for pedestrians and drive at a speed that allows a stop. Pedestrians have duties too, but a driver who hits someone walking in a marked crosswalk in front of a store entrance, or someone crossing an aisle in plain view, will have a very hard time blaming the pedestrian. Our pedestrian injury practice handles these claims, which often involve serious injuries even at low speed.

Why the insurer's "50/50" is often wrong

Adjusters like to split parking lot crashes down the middle because it saves their company money and because they assume no one can prove otherwise. Under Ohio's comparative-fault rule, an injured person can recover as long as his share of the fault is not greater than the other side's, and his damages are reduced by his own percentage. A 50/50 split cuts your recovery in half. If the evidence shows the other driver was 80 or 90 percent at fault, accepting 50 percent leaves a great deal of money on the table. I explained how comparative fault works in an earlier post.

Documenting a lot crash when the police will not

Because a full police report may never be written, the evidence you collect at the scene matters even more than usual:

• Photograph both vehicles in place before they move, showing their positions relative to the lane lines, parking spaces, and arrows.
• Photograph the lot layout: stop bars, painted arrows, signs, and which lanes are through lanes.
• Look up. Stores, banks, gas stations, and many shopping centers have security cameras covering their lots. Ask the manager immediately to preserve the footage, and follow up in writing. Many systems record over themselves within days or weeks.
• Get witness names and phone numbers. Shoppers leave quickly and are almost impossible to find later.
• Ask for an incident report from the store, and request whatever the police did prepare, even a short exchange-of-information form.

I covered scene photography in more detail in a 2014 post on crash-scene evidence. The same steps apply, with extra urgency for video.

What this means for you

A parking lot crash is not automatically shared fault. Although many traffic statutes do not apply on private property, ordinary negligence does, and it usually points to the driver who backed into traffic, cut through the rows, or ignored the lot's stop bars. If you were hurt, especially as a passenger or a pedestrian, do not let the adjuster's default 50/50 split become the final word. Our Dayton car accident and intersection collision pages explain how right-of-way evidence is used to prove fault.