If you were injured by a vehicle (car, truck, bus, motorcycle, bicycle, or other mode of transportation) while crossing the street, walking along the side of the road, or while on the sidewalk, you may have the right to make a financial recovery from the responsible party for damages incurred. Often times this can not just be the driver of the vehicle, but also an entity who is responsible for the intersection, crosswalk or vehicle that is being driven (i.e. City, State, County or private entity).
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As anyone who has been in one knows all too well, pedestrian accidents are often a uniquely horrific form of accident.
Ordinary car accidents can be devastating, but at least the occupants of cars have some protection. When you are in a car, you are encased within a protective metal bubble which usually comes with numerous additional safety features including seat belts and airbags. And even motorcyclists and bicyclists typically have helmets.
But when you’re a pedestrian, you often have no protection at all other than the clothes on your back and any obstacles in the way of the car. No unprotected human being is a match for a several-ton car, truck, or other motor vehicle.
Because of this, pedestrian accidents are often among the most devastating types of car accidents. They have the potential to cause death and serious injury to the pedestrian, even when they involve a car traveling at low speeds.
How fast does a car have to be traveling before it has the potential to be deadly?
Well, the National Highway Traffic Safety Administration has found that even cars traveling at speeds of less than 20 miles per hour can still cause death or serious injury to a significant fraction of pedestrians with which they collide.
Of course, pedestrian accidents become exponentially more dangerous as speed goes up. At speeds of over 30 miles per hour, the majority of pedestrians hit by cars were killed or incapacitated. And 30 miles an hour really isn’t all that fast, considering that the speed limit on most city streets is closer to 40 or 50 miles per hour.
Motor vehicles are not the only type of danger that pedestrians face, either. There are a number of risk factors present on streets and sidewalks which may lead to pedestrian injury, including poorly maintained roads. We’ll discuss non-vehicular pedestrian accidents in greater detail below.
Pedestrian accidents are extremely common. Every year, around 4,000 to 5,000 pedestrians are killed in collisions on American roads. This number has remained fairly stable over the last decade, even as car crashes on the whole have gone down. Altogether, pedestrian deaths account for between 10 and 15 percent of all traffic accident deaths.
These numbers might sound a little abstract, so let’s try to put them in perspective. Pedestrian deaths in the United States are greater than the number of casualties that occurred on 9/11 or during the Pearl Harbor attack, every single year.
Or looked at another way: annual pedestrian deaths are roughly equal to the number of American deaths during the entire Iraq War, and higher than the number of American deaths in Afghanistan. Whichever way you look at it, there’s no denying that pedestrian accidents are a big problem.
And that’s only counting pedestrian deaths, which are a small minority of all pedestrian accidents. In 2014, there were 70,000 pedestrians injured on American roads. These injuries can range from minor to life-changing and devastating.
What are the causes of pedestrian accidents? There are a variety of causes, including driver inattentiveness, speeding, failure to yield the right of way, failure to obey traffic signals, and failure to signal a left or right turn. Alcohol is known to be a particularly large factor in pedestrian accidents: about half of all pedestrian accidents involve either an intoxicated driver or an intoxicated pedestrian.
One of the worst things about pedestrian accidents is the fact that they tend to disproportionately affect the most vulnerable in society, including children and the elderly.
Young children between the ages of 5 and 9 are the age group which is most likely to be hit by cars. In this age group, boys are at a higher risk than girls.
Elderly people are not significantly more likely to be hit by cars than members of other age groups. However, elderly people are the most likely to be killed or seriously injured if they are hit by a car.
Pedestrian accidents can occur anywhere and anytime. However, some times and locations are known to be particularly dangerous.
Pedestrian accidents are most likely to occur during the morning and evening rush hours, when the streets are busiest. The most dangerous time for pedestrian accidents is the three-hour period between 6pm and 9pm. However, fatal pedestrian accidents are most likely to occur after dark, when visibility is poorest and there are more drunk drivers on the road.
Pedestrian accidents are most likely to occur on weekends, and on a few specific holidays which are known for having a high prevalence of all types of car accidents, including New Year’s Eve and the Fourth of July. They increase during the fall and winter months, when there are the fewest hours of sunlight. However, children are at the highest risk during the summer, when they play outside more frequently.
Where do pedestrian accidents occur? Well, most pedestrian accidents occur on local and urban roads. Areas with crosswalks, including intersections, or areas which otherwise have a high volume of pedestrians, are often hot spots. A minority of pedestrian accidents do occur on the open highway.
If you were injured while crossing the street at a crosswalk, you may have the right to recover damages from the motorist who hit you. A crosswalk exists at every intersection, whether the crosswalk is marked or not. A person crossing the road in a crosswalk has the right of way and motor vehicles are required to stop for the person and let him or her reach the other side of the road without hindrance or injury.
A number of crosswalk accidents occur in marked crosswalks that are in the middle of the block rather than at an intersection. In such a situation, warning signs that a crosswalk is ahead should be placed to give adequate warning to the driver of the impending crosswalk so that he or she may be on the lookout for pedestrians crossing the street.
A person who is lawfully crossing the street in a crosswalk may suffer serious injuries, even death, if he or she is hit by a passing car that does not yield the right of way to him or her or was distracted or otherwise not paying attention to the road ahead to see the “crosswalk ahead” warning signs or the persons crossing the street. The person may suffer broken limbs and internal injuries, a spinal cord injury that results in permanent paralysis from the neck (“quadriplegia”) or waist (“paraplegia”) down. Often the pedestrian is thrown to the ground, suffering head injuries that may include traumatic brain injuries.
When a pedestrian is crossing a roadway where they aren’t legally permitted to cross, it is often considered jaywalking. If you were jaywalking and were struck by a car, chances are that the initial blame would be on you. However, it is important that all factors are considered before coming to a final conclusion. It is important not to guess about your legal rights. In California, the courts use a comparative negligence standard when determining fault.
Even if there was no crosswalk and you were struck by a car while crossing the street, the same legal rights apply as if you were in a crosswalk. Although there may be some comparative negligence or an argument that you were at fault, there are many factors when analyzing a situation like this. In residential streets there typically are no crosswalks and you’re legally allowed to cross the street without a crosswalk.
Why do pedestrian accidents happen on state and interstate highways, where pedestrian traffic is typically forbidden? There are a few reasons for this.
Some pedestrians are confused (or intoxicated) and walk onto a highway by mistake. Others were originally motor vehicle drivers or passengers, but left their vehicles after a collision or engine failure. This is why you should never get out of your vehicle on the freeway, unless you have pulled over to the shoulder or another safe area.
Pedestrian accidents that occur on open highways almost always result in death or serious injury to the pedestrian, simply because the cars are driving so fast, and the drivers are usually not on the lookout for pedestrians.
Unfortunately, in most cases involving a pedestrian accident on the highway, the pedestrian (or their loved ones) have little or no grounds to sue, because they were responsible for placing themselves at risk by walking on the highway.
However, there are a few narrow circumstances in which the pedestrian may file a lawsuit for a pedestrian accident on the highway. Possible defendants in such a lawsuit may include the driver who hit them or the government agency responsible for maintaining the road, if that agency failed to properly maintain the highway.
So far, we’ve been talking about pedestrian accidents as though they always involve a motor vehicle and a pedestrian, but this isn’t necessarily the case. In fact, research suggests that the majority of pedestrian accidents are non-vehicular.
The National Highway Traffic Safety Administration’s 2012 National Survey on Bicyclist and Pedestrian Attitudes and Behaviors found that only 12% of pedestrian accidents, or around 1 in 8, involved a pedestrian being hit by a car.
How did the rest of the pedestrian accidents occur? Well, a lot of them were trip and fall accidents. 24% of respondents reported tripping over an uneven sidewalk, and another 17% reported tripping in an unspecified way. Other common causes of injury included falling over stones and stepping in holes, as well as accidents involving pets and wildlife.
Pedestrian accidents which are caused by these factors tend to be less severe than those involving vehicles. But this isn’t always the case! Pedestrians can and do suffer very serious injuries, including fatal injuries, in non-vehicular accidents.
Who can be sued for a pedestrian accident not involving a car? It depends. Sometimes no one can be sued. Pedestrians still have a duty to be responsible when walking, and not every accident is grounds for a lawsuit.
But other times, a third party can be held responsible for the pedestrian’s injuries. Since trip-and-fall accidents are the most common type of non-vehicular pedestrian accident, the party most likely to be held liable in a non-vehicular pedestrian accident is the government agency responsible for maintaining the road or sidewalk where the accident occurred.
Government agencies which maintain roads and sidewalks have a legal duty to keep them in safe working order and remove unnecessary hazards. Of course, these agencies can’t remove every single hazard, but they are expected to make a reasonable attempt to do so. If they violate this legal duty, then they can be held responsible for accidents which occur on the road or sidewalk.
Pedestrian accidents involving faulty road design or upkeep fall under a different body of law from ordinary car and motor vehicle accidents. As a result, a different set of laws and legal precedents will apply. If you are filing a lawsuit against a government agency, there are also a few unique complications which will apply to your case.
For instance, cases against government entities are sometimes curtailed by the doctrine of sovereign immunity, which protects the government from being sued in a personal injury claim. Don’t panic just yet: sovereign immunity is no longer a strict legal doctrine, and there are ways for citizens to sue the government, but it does mean that that there are some complications which will make it harder (although by no means impossible) to do so.
Among other things, the statute of limitations for a lawsuit against a government agency is shorter than it would be for most other types of personal injury cases. For instance, in California, the statute of limitations for personal injury cases in general is two years, but for cases against a government agency it is only six months. So don’t dawdle with this kind of lawsuit!
Still, despite this and a few other complications, lawsuits against government agencies can be won, with the right legal representation. In fact, plaintiffs in these cases have been known to receive very large judgments and settlements. You just need the right lawyer… and that’s where we come in.
In short, no matter what type of pedestrian accident you have been in, whether vehicular or otherwise, we at Torklaw can still help you.
Many people assume that whenever a car hits a pedestrian, the driver is always at fault. And indeed, the law does weigh heavily on the side of the pedestrian in most cases. Fault in car accidents is, at least in part, a function of which party had a greater ability to prevent the accident, and in most cases this is the driver.
But this isn’t always true. In some cases, the pedestrian may be partially or even fully at fault for an accident. And when a pedestrian shares responsibility for an accident, it may diminish or altogether nullify the pedestrian’s claim for compensation.
How do we determine fault in a pedestrian accident? It’s complex, but here are a few guidelines:
The law recognizes that fault in a car accident is rarely clean-cut, and that the pedestrian may share some responsibility without bearing the full blame for the accident. In situations where fault is shared, the pedestrian may still receive damages, but these damages will be diminished according to the rule of comparative negligence.
Although the precise rules of comparative negligence vary from state to state, the basic concept is this: a party who was injured in a car accident, but was partly at fault, is eligible to collect damages at a decreased amount, depending on the degree to which they were at fault.
What does this mean in plain English? Well, let’s say that you were hit by a car while out walking, but you were partly to blame, perhaps because you were jaywalking or engaging in one of the other activities listed above. A jury may decide that the driver’s negligence was 80% of the reason why the accident happened, and your negligence was 20% of the reason.
Under a comparative negligence standard, you will then be able to collect 80% of the damages to which you would otherwise have been entitled. If you would have been eligible to receive $1 million, you will instead get $800,000. You won’t get everything you might want, but in most cases you can still recover quite a respectable amount.
(A few states have a stricter standard known as contributory negligence, which makes it impossible to collect any damages at all if you were even slightly at fault. However, this standard is largely obsolete in the modern legal realm and only remains in effect in D.C. along with Alabama, Maryland, North Carolina, and Virginia.)
So, even if you’re not able to recover full damages for your accident, you’ll likely be able to recover a lot if you have the right lawyer backing you up.
There are a few situations in which the pedestrian is entirely and unequivocally at fault. In these situations, the pedestrian will likely be unable to collect any damages at all for the accident. In fact, if the pedestrian’s conduct was egregious enough, they may be liable for any injuries or property damage suffered by the driver involved in the collision.
Fortunately, this is not a common legal outcome! The legal system recognizes that pedestrians are more vulnerable than drivers, so even when the pedestrian was partly at fault, it would have to be a truly exceptional situation that would lead to a pedestrian having to pay damages. Not to mention that most pedestrian accidents don’t do a whole lot of damage to cars and their drivers.
Some classes of road users, including bicyclists and motorcyclists, are treated with a high level of suspicion by the personal injury legal system. The good news is that as a pedestrian, you likely won’t face this. The legal system will be somewhat more inclined to give you a fair hearing, and with the right legal representation, there is no reason why you shouldn’t get all the damages you deserve.
If you file a pedestrian accident lawsuit, then you are the plaintiff of the lawsuit, and the person who injured you is the defendant. To win a pedestrian accident lawsuit, the you must prove that the defendant committed negligence.
Negligence is the standard for all types of accident lawsuits in the personal injury system, not just pedestrian accidents. The general standards for proving negligence in a pedestrian accident are the same as those for any other type of accident.
The plaintiff must demonstrate four items: duty, breach, harm, and causation. That is, they must prove that the defendant had some duty to the plaintiff (in this case the duty to drive safely and keep an eye out for pedestrians using the road), that they breached this duty, that the plaintiff suffered some harm, and that this harm was directly caused by the defendant’s breach of duty.
In many jurisdictions, it is not particularly difficult to prove negligence in a pedestrian accident. Demonstrating that the defendant violated a traffic law or ordinance is enough to prove that the defendant committed negligence per se. For instance, if a driver ran a red light or a stop sign and hit you in the crosswalk, this may be enough to prove negligence per se on their part.
As with other types of accidents, there are a few different types of damages that you are allowed to collect in a pedestrian accident lawsuit.
The three different types of damages are:
Of course, the types of damages which you are eligible to collect will vary significantly based on the precise nature of your case and the quality of legal representation which you have.
If you were in an accident as a pedestrian, your first course of action should be to seek compensation for your injuries from the other driver’s liability insurance. They will likely try to deny your claim, and if they do, this is when a personal injury lawsuit starts to become necessary.
If you are injured in a pedestrian accident, you may also turn to your own medical insurance coverage. Your medical insurance will pay your bills, but afterwards it will seek reimbursement from the responsible driver’s auto insurance behind the scenes, through the process of inter-insurance arbitration.
Once your medical insurance is exhausted, you may also seek compensation from your own auto insurance. Even if you were walking rather than operating your motor vehicle at the time, your auto insurance bodily injury coverage can help pay your damages.
A minority of states, including New York, are no-fault insurance states. In these states, insurance companies are required to pay medical bills whenever anyone was injured in a crash, completely irrespective of who was at fault. If you have no-fault coverage in New York, then you may be eligible to collect damages up to the required legal limit.
After a pedestrian accident, you should take many of the same steps which you would take after any other type of car accident.
First and most importantly, make sure that you are safe! Get out of the road and away from traffic, and seek medical attention. Even if your injuries seem minor, being hit by a car is no small matter, and there are plenty of accident injuries which do not show up immediately. (For more about accident injuries with delayed symptoms, check out our article on the topic.) Call 911 and seek appropriate medical attention.
You should also exchange information, including name, contact and insurance information, with the driver who hit you, as well as any other parties involved. This is required by law, and is also necessary if you wish to receive any damages for the accident.
Unfortunately, some drivers do choose to flee the scene of an accident rather than face consequences. If this happens, your best bet is to try and get as detailed a description of the hit-and-run vehicle as possible, including make, model, color, license plates, a description of the person driving, and any damage caused by the collision. You can also try to subpoena any security cameras that were in the area. With luck, you may be able to track down the person who hit you.
If the driver does stop, then exchange the formalities with them, but not much else. Don’t get angry, even though it’s hard! Your temper will likely be running high, and we don’t blame you one bit for being angry that someone hit you with a car, but losing your temper is one of the worst things you can do. You might hurt your case, or even end up in criminal trouble if things escalate too far.
But at the same time, don’t apologize. It’s polite to apologize for inconveniencing someone else, but in personal injury law this has an entirely different meaning: it can be taken as an admission of fault on your part. So don’t say you’re sorry. Even if all you meant was “I’m sorry this happened,” the law will take it as “I’m sorry I caused this.”
In short, just remain completely dispassionate and say as little as possible. Almost anything you say, aside from giving your name and insurance information, will hurt you. You have nothing to gain, and everything to lose, by running your mouth.
If you are in any condition to do so, then try to collect evidence at the scene of the accident. Take multiple pictures of the accident and your injuries, including anything that might be relevant to your claim. If there were any witnesses to the accident, talk to them and try to get their contact information. Witnesses can make a big difference.
Once you have called 911, the police will respond to the incident. After responding, they will write up a report on the accident. It is very important that you order a copy of the accident report from the police afterwards! There might be a nominal fee, but Torklaw will order your report for you completely for free and with no obligations attached.
The accident report will have its own assessment of fault, which is separate from that of the insurance companies, and may be different. Although it is not admissible in court as evidence, a police report can still have a big impact on the final decision of your insurance companies.
Aside from this, you should avoid talking to anyone without your lawyer present. This is very important, and we can’t stress it enough. Don’t talk to the other driver’s insurance company or their attorney; they aren’t on your side, and they will use their decades of experience to try and trip you up.
No matter how savvy you may be, you’re simply not prepared for some of the tricks that they may throw at you. So don’t talk to anyone, and don’t sign any statements. Don’t even talk to your own insurer; they’re not necessarily on your side, either.
The other driver’s insurance may offer you a lowball offer. This offer might seem reasonable or even generous at first, but once you’ve signed it, it might turn out to be woefully inadequate and far below what you could have gotten if you’d fought harder. Unfortunately, once you’ve signed it, it’s too late; the other insurer will simply wave the paper with your signature on it in your face and refuse to listen to you further.
That’s why the best thing that you can do in an accident is hire a lawyer! A strong, aggressive personal injury attorney will take upon themselves the burden of your case, and do the fighting and the legal muscle work for you so that you don’t have to. This will take a huge load off of your mind and allow you to focus entirely on your recovery, which is what you should ideally be doing after an accident.
Torklaw attorneys are extremely skilled at handling pedestrian accident cases. We have extensive experience in dealing with these types of cases, and we have a good track record of victory (including a verdict for over $26 million in a recent pedestrian accident). We’re willing to fight for our clients to receive the maximum amount of damages that they can possibly get, and even if you choose another firm, we’re happy to speak with you about your case and offer whatever help we can.
Call Torklaw today for a FREE consultation! (888) 845-9696
Also, if you would like more information on pedestrian accidents, Reza’s book Accidents Happen: A Consumer’s Guide to the Personal Injury and Wrongful Death System has a chapter which deals with pedestrian accidents, and another chapter which deals with “trip and fall” accidents of the type that characterize many non-vehicular pedestrian accidents. If you are a resident of California, we will allow you to order a free copy of the book.