If you are a pedestrian and have been hit by a vehicle, you may automatically assume that the driver will always be deemed to be the person at fault. Nine times out of ten, that is the result. However, like so many things in the law, nothing is black and white.
To claim damages for your injuries as a pedestrian, you do need to still prove fault, and that requires several considerations before reaching this end result.
We have asked attorney, Alaina Sullivan, about how someone might go about this. Here is what she had to say:
Pedestrian Rights
As a pedestrian, you do hold certain rights. You have the right or “right-of-way” to cross a street at crosswalks, on public and private sidewalks and public roads or highways. What being a pedestrian does not guarantee is the right to walk on any surface if a sidewalk is available or cross the road in the middle of traffic if a signal is not directing you to cross.
Your rights as a pedestrian also come along with accompanying duties, and it is important to understand those as well.
Pedestrian Duties
Pedestrians are held to a duty of care that requires them to follow traffic laws, just as motorists are. They are subject to the do not walk or walk signals at traffic lights or any other safety devices or warnings that are installed to assist in pedestrians crossing traffic.
Even if the pedestrian has been given the clear to cross the road by a signal, he or she still needs to act reasonably and cautiously under the circumstances when crossing.
If the pedestrian sees a car flying towards the traffic light that is clearly not going to stop, he or she should use common sense in not choosing to cross at that time, regardless of whether he or she has the right of way.
Similarly, if a sidewalk has been built along a road, the pedestrian must walk on it and not the actual road. If one is not available, the pedestrian should walk along the shoulder, walking in the direction facing traffic.
It is a matter of being aware of one’s surroundings and using caution when traveling. You may not hold responsibility for the negligence of someone else, but you can at minimum, mitigate the consequences if at all possible.
Common Pedestrian Accidents
When it comes to the negligence of the driver, most pedestrian accidents involve failing to yield to a pedestrian or failing to pay attention. The driver could be driving over the posted speed limit. Drivers also can be distracted by their cell phones, food, music or any other distraction in the vehicle.
If the roads are poorly maintained or if a part of the car, such as the brakes, fails, accidents can result from this as well. Of course, driving while intoxicated or under the influence often leads to pedestrian accidents, too.
However, pedestrians are not blameless. Many accidents are caused by the person walking, not the person driving. Pedestrians who deliberately ignore traffic signals, jaywalk or cut diagonally across a road can cause accidents.
Failing to walk on the crosswalk markings or on the provided sidewalk also lead to accidents. Lastly, walking intoxicated and failing to follow traffic laws or even just basic laws can lead to accidents which are the fault of the pedestrian.
How to Prove Fault
The first step in trying to prove fault against a motorist who struck you is to accumulate evidence to back your claim. Also, make sure you get the motorist’s insurance information and immediately report the accident and file your claim.
You will need to show that the driver’s actions were negligent when attempting to prove fault.
With any negligence claim, you must show that the driver owed you a duty of care while on the road to you and other pedestrians, that the driver breached that duty, that the driver’s actions were the direct and proximate cause of your injuries, and that you have been, in fact, injured.
Obtaining Evidence
If you are a pedestrian who has been hit by a motorist, collect the following evidence:
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It may seem obvious, but the first step in collecting evidence is to get the law itself. Go to your license branch and get a booklet on your state’s motor vehicle laws. You should find laws governing both motorists and pedestrians in this document.
Make sure what you did was lawful first before seeking any type of claim.
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Once you know for certain that you are in the right, obtain a police report of the incident. If a pedestrian has been struck by a vehicle, many times the police are automatically called to the scene on the assumption that injuries can be significant.
If they are not automatically there, call the police if you feel you have been hurt. Police officers are trained at recreating what happened in an accident, and this report will help you prove your case.
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Get the names and contact information for witnesses who saw what happened. Also, be sure to write down statements made by the driver after the accident occurred.
Hopefully one of the witnesses hear them, as well, but if the driver gets out of the car and says something like “I’m sorry, that was completely my fault,” you can use that statement later if he or she tries to fight blame. These statements are known as excited utterances, statements against interests or admissions.
- Make sure you document the scene or have someone do this while you are attending to your injuries. You can very easily to this by taking photos of the accident. Keep your clothing from that day as it may have evidence from the other car or the debris from the accident scene.
Pedestrian Injuries
Pedestrian injuries can be primary and secondary. Primary ones are those that occur at the time of impact while secondary ones are what happens when the pedestrian is pushed or thrown into another object because of the hit.
Pedestrian accidents can result in cuts, bruises, scrapes, and broken bones. Depending on how fast the vehicle was traveling and how hard the impact was, the victim can suffer from spinal cord injuries, concussions, fractures to bones or joints or even torn ligaments.
These injuries can be extremely serious, if not life threatening.
What to Expect From Your Settlement
The amount of money that you will receive in a settlement is directly related to the costs that you were burdened with as a result of the accident. After gathering all of the evidence described above, you will have to come up with a monetary value to ask for in your claim.
This number will have both objective and subjective costs. Object costs include medical expenses as a result of being hit by the vehicle as well as any property damage that is sustained. For example if you were walking with your laptop, be sure to include this in your claim. There is even a grey area for these expenses as they include future expenses as well as lost wages. If you will need a surgery or physical therapy in the future or expect to miss a significant amount of work, these costs should be in your claim.
The subjective costs are a little more difficult to calculate, but should still be in your claim. These costs include any major lifestyle changes as a result of the accident, loss of consortium and loss of enjoyment of life. If you are no longer to participate in your favorite hobby, you can be financially compensated for it. In an accident that involves a pedestrian and a vehicle, it is possible that this injuries sustained will be severe and the settlement will reflect that.
Contact an Attorney Today
It is always recommended you speak to a licensed personal injury attorney before going forward. Have someone evaluate your case and determine if you have a claim against the other party’s insurance company.
Schedule a consultation to speak with a personal injury attorney in your area today.
