According to the U.S. National Highway Traffic Safety Administration (NHTSA), a vehicle kills more than 4,000 people each year and injures more than 70,000 in pedestrian accidents. The NHTSA defines pedestrian as “any person on foot, walking, running, jogging, hiking, sitting or lying down….” On average, a vehicle kills one pedestrian every two hours and injures one every eight minutes.
Pedestrians’ Rights and Duties
Your legal rights and duties as a pedestrian are in your state’s Motor Vehicle and Traffic Safety Code. Most states’ pedestrian laws are quite similar. The most common laws regarding rights and duties of pedestrians are:
- The right-of-way in crosswalks
- The right-of-way on public and private sidewalks
- The right-of-way on public roads and highways
- Pedestrians are subject to traffic lights, Do Not Walk signals, and other pedestrian safety devices and warnings.
- If there’s a sidewalk along a roadway, a pedestrian must walk on it. When there isn’t a sidewalk on a public roadway, a pedestrian must walk along the shoulder of the road facing traffic.
- Even when a pedestrian has the right of way, he must maintain a proper lookout and act reasonably and prudently (carefully) under the circumstances.
- Pedestrians must use common sense. They must be aware of their surroundings and do whatever is reasonable and prudent under the circumstances to remain out of harm’s way.
Common Causes of Pedestrian Accidents
While negligent drivers are often to blame when pedestrians are hit by cars, it isn’t always the motorists’ fault. Pedestrians too can cause accidents. Let’s look at some of the most common causes of pedestrian accidents.
Caused by motorist
- Failure to yield to a pedestrian
- Failing to obey the posted speed limit
- Distractions such as cell phone and texting, eating, putting on makeup, and listening to music
- Car equipment failure (brakes, tires, etc.)
- Poorly maintained roads
Caused by pedestrian
- Ignoring a traffic signal
- Jaywalking or cutting diagonally across a road
- Walking outside of crosswalk markings
- Walking along a high-speed thoroughfare
- Failing to walk on the sidewalk
Common Pedestrian Injuries – Primary and Secondary
Although most pedestrian injuries occur at the primary point of impact, others occur secondarily. Secondary injuries happen when the force of the impact propels the pedestrian into another solid object. For example, the initial impact broke the pedestrian’s leg, but the force of the impact flung him against a wall and fractured his skull.
Injuries most common to pedestrians are:
- Scalp lacerations (cuts), contusions (bruises), other lacerations, and abrasions (scrapes)
- Brain concussions, brain swelling, hemorrhages, and hematomas (blood clots)
- Lacerations, contusions, and abrasions on the hands and face
- Spinal cord injuries
- Torn and sprained ligaments
- Fractures to the tibia, fibula and femur (leg bones), ribs, arms, hip and pelvis
What To Do If You’re an Injured Pedestrian
Like all other personal injury claims, pedestrian injury claims require evidence. If a car hits and injures you, get the motorist’s name and contact information. You also need his insurance company’s contact information. If your injuries are too serious for you to get the information, ask a friend or one of the police officers to get it for you.
Contact the motorist’s insurance company, report the accident, and file your claim. Contact your insurance company to report the accident, as well.
The next step is proving the motorist’s actions were negligent and therefore caused the accident resulting in your injuries. Without proof, your claim will fail. Right after a pedestrian accident, you need to start asking the following questions:
- Did the motorist breach (violate) his duty of care (obligation) to me, or I to him?
- Were the motorist’s actions the direct and proximate (legally acceptable) cause of my injuries? Was he negligent?
- Were there intervening forces, and if so, do they relieve one or both of us from fault?
Building Your Claim
Duty of Care, Proximate Cause, and Negligence
A motorist has a duty of care to drive safely while obeying traffic laws. Where traffic laws don’t apply, the motorist must use his common sense and act reasonably and prudently under the circumstances. His failure to do this is negligence. The same applies to the pedestrian.
To prevail in your pedestrian injury claim, you need evidence to prove the motorist breached (violated) his duty of care to you, and that breach was the direct and proximate cause of your injuries. We’ve put together an invaluable list of evidence resources you can use to construct these legal requirements.
Sources of Evidence
Your state’s motor vehicle handbook
Your state’s motor vehicle laws govern pedestrians and motorists. Many states list them online. Check to see whether the motorist violated any traffic laws. Also, check to see whether you did. Print the section of law applicable to your claim.
Police, fire, and rescue report
If your injuries were serious enough to require police, fire, and rescue, the police will write a report. You can get a copy for a small fee at your local police department or municipal records building. A police report’s contents can be strong evidence. Police officers receive training to draw diagrams of accident scenes. They also include their impressions of the causes of accidents and responsible parties.
If they issued tickets, they note that also. A ticket is compelling evidence against the person who receives it. If you received one for jaywalking that will certainly have a negative effect on your claim. If the officer issued one to the motorist, it’s just the opposite. You can also find witnesses’ names and contact information in the police report.
Whether your witnesses come from the police report, from your investigations, or both, their statements are important evidence. Witnesses hear and see things you may have missed, especially after a car injures you.
Res gestae statements against interest, excited utterances, and admissions
Often, when accidents occur, the responsible party, out of guilt or honor, will make a statement. If you or your witnesses remember any of these statements, make sure you write them down.
Statements like “I’m sorry, I didn’t see you” or “I was on the phone” or “I’ll pay for your medical bills” are some of the res gestae (admissible facts), excited utterances (something the person blurts out), and admissions against interest (admitting fault) the courts have traditionally allowed as strong evidence of liability.
Accident photographs are an excellent source of evidence. In a claim where a pedestrian is hit by a car, they’re useful to contradict a motorist’s assertions it was too dark to see you, or other incorrect statements he might try to use to defeat your claim. Taking photographs of the impact point on the car is quite helpful. Your clothing may have torn, and parts of it may still be on the car.
Be sure to keep your clothing. See whether any of the car’s paint or other debris lodged in your pants, blouse, belt, or your shoes. See whether the force of the impact left paint on your clothing.
Although the police report will note the weather at the time of the accident, it’s a good idea to get your own independent weather report. You can access weather reports at no charge from the National Weather Service.
Your medical records, especially your emergency room admission chart, are important evidence. They tie your injury directly to the accident. Your statements to the doctors and nurses about the causes of the accident are compelling.
Your medical bills fulfill two requirements. They’re useful as documentary evidence of your injuries and treatment. They’re also useful later, along with your out-of-pocket expenses and lost wages (your specials), to compute your settlement demand.
Negotiating Your Injury Claim
Your negotiations with the insurance company’s claims adjuster are evidence-based. The more evidence you have, the better your chances for a higher settlement. Your evidence will highlight the events immediately before the accident, at the time of the accident, and during your recovery. If you prepared your evidence properly, you probably can settle your claim without much difficulty.
Here’s a summary of three recent court cases involving pedestrians hit by cars that illustrate the legal duties of care for pedestrians and motorists.
Example: Motorist negligence
The speed limit on a local street is 35 miles an hour. Today, it’s snowing and the roads are icy. Visibility is minimal. A pedestrian is standing on the sidewalk. The motorist is traveling at 35 miles per hour. The light turns red, and the motorist applies his brakes. The car slides on the ice, jumps the sidewalk, and hits the pedestrian.
The court said although the motorist was within the speed limit, he breached his duty of care by failing to reduce his speed accordingly. His failure to reduce his speed constituted negligence. His negligence was the proximate cause of the pedestrian’s injuries. The pedestrian won the case.
Example: Pedestrian negligence
It was 11:00 p.m. on a moonless night. There were no streetlights. A pedestrian entered a crosswalk while wearing a black T-shirt and dark navy blue pants. The motorist was driving within the speed limit. The light was green for the motorist. The motorist struck and killed the pedestrian.
The court decided the pedestrian didn’t act reasonably and prudently under the circumstances. He wore dark colors and entered the crosswalk while the light was green for the motorist. The pedestrian’s family lost the case.
Example: Motorist and pedestrian negligence
The pedestrian was walking her dog in her neighborhood on a local street. She was wearing headphones and listening to music. A motorist was driving down the street. The motorist saw the pedestrian. Without notice, the pedestrian suddenly turned to cross the street. The motorist struck and seriously injured her.
The court said both the driver and the pedestrian failed to act reasonably and prudently under the circumstances. The court found the driver should have anticipated the possibility the pedestrian would cross the street. The court also found the pedestrian should not have crossed without looking. Additionally, the pedestrian might have heard the sound of the motorist’s engine if the music hadn’t impaired her hearing. The court found both parties were comparatively negligent.
Lawyers and Pedestrian Injury Claims
If your injuries are soft tissue injuries such as lacerations (cuts), contusions (bruises), abrasions (scrapes), sprained ligaments, and the like, you probably can handle your injury claim without an attorney.
If though, your injuries are the more serious, hard injuries such as broken bones, organ damage, scarring, or the wrongful death of a family member, you should see an experienced personal injury attorney as soon as possible. Most won’t charge any fee for an initial office visit.
See an example of a pedestrian accident demand letter here.
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