Whenever we hear about a person getting hit by a car, we automatically assume that the driver was at fault. But that isn’t always the case! Most of us have been taught that the pedestrian always has the right of way, but this is not always legally correct. The pedestrian and driver can be classified as either fully or partially at fault.
The responsibility of driving carefully is legally termed the duty of reasonable care or due care. All drivers regardless of age or gender are held to a common standard of what a normal, careful, and sensible person would do in the same set of circumstances. If there is a pedestrian nearby while operating a motor vehicle or it is possible for a pedestrian to be in the area, it is imperative that a driver remain extra vigilant.
In any situation, a normal, careful driver would avoid hitting a pedestrian at all costs. However, if a pedestrian behaves in a way that makes a normal, careful person unable to avoid striking them with their vehicle, the pedestrian then has some fault in the accident. For example, if a pedestrian is intoxicated and runs out into the street at night without using the crosswalk and is struck by a car, the pedestrian is at-fault. If the car swerves to try to avoid hitting the intoxicated person and ends up hitting another vehicle, the pedestrian is at fault for any damages caused by them due to their negligent behavior.
If the driver is fully at fault in the accident, the pedestrian will more than likely be able to receive compensation from the driver for any injuries. When the pedestrian is fully at fault, (s)he will more than likely not receive compensation for any injuries. In fact, the driver can actually sue the pedestrian for any harm done to the car and/or their own injuries!
Most often, both the pedestrian and the driver are each partially at fault. If a pedestrian is jaywalking and a driver is not watching because they are texting, both are breaking the law. What happens when both parties are at fault? While different states have different rules in shared fault incidents, all of the rules are based on two basic legal concepts: comparative negligence and contributory negligence.
Comparative Negligence Versus Contributory Negligence
The most common version among states is a form of the comparative negligence rule that follows the idea of an injured person sharing the fault for causing or contributing to the accident. Under a “pure comparative negligence” rule, the injured person is able to receive compensation from any at-fault party; however, the damages awarded are reduced by the percentage of their share of the fault. In all states, a jury is called on to determine the percentage of fault assigned to each individual. In states that follow the “modified comparative negligence” rule, the injured person can receive compensation from any other at-fault person, but only if the injured person bears less than 50 percent of the blame in the accident.
Contributory negligence is still practiced in Alabama, the District of Columbia, Maryland, and Virginia, but it is not the mainstream practice. The rule is quite rigid in its application because if you as the driver or the pedestrian have any fault in the accident, you are unable to file a liability claim against any other at-fault party. If there is any partial fault, both parties are responsible for their own injuries and damages due to the crash. Both the driver and the pedestrian can file insurance claims, but neither is able to pursue a lawsuit against the other.
Pedestrian accidents are common in many states. The most common car-pedestrian accidents are vehicles that back into pedestrians, vehicles that sideswipe pedestrians when they are on the side of the road, hitting a pedestrian when making a left turn at an intersection, children crossing the road to board a school bus, jaywalking, and pedestrians who are checking their mail. In each of these instances, pedestrian visibility is significantly reduced, and these accidents can be dangerous and often cause serious or life-threatening injuries.
Hoffmaier & Hoffmaier has been helping car-pedestrian accident victims in New York City for over 25 years. For a free evaluation of your case, call us at (212)777-9400. If you or a loved one were the victim of a car-pedestrian accident, we’re ready to help you get the compensation you deserve. If you’ve been injured in a car-pedestrian accident in New York City, call us TODAY.