After any accident that causes an injury, the victim may replay the situation in their head, wondering if they could have done something differently to avoid the accident.
This is particularly true in a pedestrian accident when others can quickly assume that the injured pedestrian must have stepped into the road at the wrong time or failed to look both ways before crossing. Many times, even if the pedestrian feels they could have done something differently, the motor vehicle driver that struck them will still bear liability for the accident, as they owe a higher duty of care to avoid harming the pedestrian than the pedestrian owes to the driver. a pedestrian accident lawyer can guide you in this situation.
What Is a Duty of Care, and Why Does a Driver Owe a Higher Duty of Care?
As explained by Law.com, the legal term duty of care refers to the responsibility that an individual has in a specific set of circumstances to act toward others with the watchfulness, attention, caution, and prudence that any reasonable person would in those same circumstances. Failing to exercise a duty of care by taking reasonable actions to avoid an accident that harms others or their property is considered negligence.
The average passenger car is around 14.7 feet long, though passenger vehicles can range in length from 12 to 22 feet, and commercial vehicles are even longer. These vehicles weigh anywhere from several thousand to tens of thousands of pounds and can travel at high speeds. Their cabins come equipped with seat belts, airbags, and an enclosed frame. They have lights, mirrors, and sometimes sensors or cameras to see what is around them at all times.
Pedestrians, on the other hand, are much smaller and slower. They have no inherent features to protect them from a collision with a fast-moving vehicle and don’t always carry lights to help others see them at times of low visibility.
Because of these significant differences in the associated risk, pedestrians have many fewer legal responsibilities. They are encouraged to walk on sidewalks if available, cross at crosswalks if available, and avoid running into traffic. On the other hand, drivers are tasked with driving safely and legally and taking all reasonable actions to prevent an accident, even when they have the right of way.
Driver distractions include any activity that either causes the driver to look away from the road, take their hands from the proper position on the steering wheel, or their thoughts to focus on something other than driving safely.
Texting while driving, for instance, involve all three of those activities.
In the time that a driver is looking at something other than the roadway, reaching for something, visiting with passengers, daydreaming, or dealing with any other type of distraction, their vehicle can travel a considerable distance, and a pedestrian can walk out into the roadway without them being aware and without the time needed to take actions to avoid an accident.
According to the CDC, alcohol contributes to nearly half of all pedestrian accidents. Alcohol creates several deficits in drivers’ skills to operate their vehicles safely including difficulty tracking moving targets, such as a pedestrian entering a crosswalk, difficulty controlling one’s speed or lane position (weaving) or making good driving decisions, such as deciding to stop when they see a pedestrian enter the roadway even though the driver has the right-of-way.
A driver who is traveling too fast for the conditions of the roadway (speeding) poses many dangers to pedestrians, such as:
- The driver has less time to see a pedestrian enter the roadway and respond by braking.
- The excess speed will make the vehicle travel farther after the brakes have been applied.
- The excess speed will increase the force of the impact, resulting in more severe injuries.
- The pedestrian will be unable to judge a safe gap in traffic in which to cross a road if a vehicle is traveling faster than expected.
According to a report from AAA Foundation for Traffic Safety, the average risk for serious injury is 10 percent for a pedestrian struck by a vehicle traveling at 16 miles per hour. This risk increases to 25 percent at 23 miles per hour, and half of all pedestrians will be seriously injured in an accident that involves a vehicle traveling at 31 miles per hour. The Foundation stresses, however, that these risks vary by age, with a severe injury in a 25 miles per hour collision being much more likely for a 70-year-old pedestrian than a 30-year-old.
Failure to Yield
Every roadway user must yield the right-of-way to other roadway users in certain situations. This includes yielding to motor vehicles and pedestrians at red lights or stop signs.
In most places where there are marked and signaled crosswalks, a driver is required to yield to pedestrians who are in the crosswalk with a signal that states that they can walk or are still in a crosswalk when the pedestrian signal shows the red Don’t Walk sign.
However, many drivers do not understand two facts about crosswalks:
- Most states consider any intersection a crosswalk, meaning the driver must stop if a pedestrian is crosses the crosswalk, whether marked or signaled.
- Even outside of the crosswalk, drivers must take action to avoid causing an accident. If a pedestrian enters the road in front of them, they may not strike the pedestrian. Instead, they must make every reasonable effort to avoid hitting the pedestrian.
Other Roadway Hazards
According to the Dangerous by Design report from Smart Growth America, the risk for pedestrians is different for different communities. Low-income areas commonly have more pedestrians on roads with higher speeds, more traffic, and often fewer sidewalks or parks for pedestrians. Smart Growth encourages communities across the U.S. to create roadway improvements and design new roads with pedestrian safety in mind.
They note that the typical non-highway arterial roads—where 60 percent of pedestrian accidents occur—include the following features:
- An avoidance of lights and intersections that would cause traffic to stop rather than moving through an area as quickly as possible.
- Numerous popular destinations or attractions bring many roadway users to the same area.
- Marked and signaled intersections that are more than .04 miles apart, meaning there is at least a 10-minute walk for a pedestrian to visit a destination that is right across the street from them.
- Sidewalks exist only as an afterthought to speed and provide little separation or safety for pedestrians. These sidewalks are often narrow, feature frequent curb cuts, and are frequently obstructed.
- Gently rounded corners allow motor vehicles to take right turns at high speeds, generally when a pedestrian has the right-of-way. These expanded corners also increase the distance a pedestrian will have to walk to cross the intersection.
The Importance of Speaking With an Experienced Pedestrian Accident Lawyer
Many pedestrians injured in accidents will avoid talking to an experienced pedestrian accident lawyer about their case because they fear they will be blamed for the accident or questioned why they chose to cross the road when and where they did.
However, after a pedestrian accident injury, speaking with an attorney is not only a meaningful way to learn about liability in this type of accident but also to understand your legal options for seeking compensation and how an attorney can assist you through the claims process.
Liability in a Pedestrian Accident Case
To prove that a driver was liable for your accident, you must show:
- The driver owed you a duty of care. This means the driver was using a public roadway and was legally responsible for taking actions to avoid causing harm to other roadway users. This duty is owed to those on or near the roadway and is demonstrated when the driver stops at a stop light to yield the right-of-way to other drivers. It is owed to bicyclists, who are generally expected to follow driving laws like other vehicles. It is also owed to pedestrians, who have an equal right to use the roadway.
- There was a breach in the duty of care. This refers to the driver’s action or inaction that put the pedestrian at risk, such as a distraction that caused them to look away from the road at the same time you stepped into their path or exceeding the speed limit, which caused them to miscalculate the adequate time to make it across the road in a non-intersection area.
- The breach resulted in an accident. You and your attorney must show that your injury would not have occurred if the driver had taken reasonable actions to avoid an accident. In other words: The driver was looking at their phone, for example, which resulted in them striking you. Or if the driver had not been speeding, you would have had sufficient time to cross the roadway, and they would have had time to react and avoid the accident.
In addition to showing the elements of negligence to prove liability in your case, your attorney will also submit documentation, witness testimony, and other evidence to justify the value of your case.
Pedestrians injured by negligent drivers can obtain compensation for the expenses they incurred due to the crash, such as lost income and medical expenses, as well as impacts, such as physical pain and suffering, emotional distress, and loss of the enjoyment of life.
What if the Attorney Thinks I Caused the Accident?
Pedestrian accidents fall under the broad umbrella of personal injury law. Personal injury lawyers provide two services to ensure anyone needing help can access them. One of these services is a free case evaluation. During a free case evaluation, you will have the opportunity to tell the attorney about the accident. They will ask you questions to get a clearer picture of the events. They may then tell you if they believe you may pursue a personal injury claim.
The free case evaluation is also a chance for you to learn more about the attorney and the firm to decide if you would like them to help you with your claim. If you do not feel they’re right for the job or they do not feel that they are able to help you, the evaluation ends, and you go on your way. However, if you and the attorney decide to work together on the case, you will be offered legal services on a contingency fee.
A contingent fee is a billing method most personal injury lawyers use. It allows their clients to wait to pay for the work they do on the case until there is a negotiated settlement with the at-fault driver’s insurance provider, the driver’s own insurance provider, or a verdict from a judge or jury.
To put it simply: An attorney on a contingent fee is not going to work on a case where they think their client is liable for their own injury. If the attorney agrees to work on your case, they believe they can show that another party is liable for your injury and that compensation is available for your losses.
If you’ve been injured in a pedestrian accident, contact a personal injury attorney in New York to learn more about your legal options and how they can help you pursue the compensation you deserve.
Mr. Finkelstein is the Managing Partner of Finkelstein & Partners, LLP. He has become a noted consumer activist through his representation of injured individuals against corporate wrongdoers and irresponsible parties.
An accomplished litigator, Mr. Finkelstein has represented Plaintiffs in wrongful death and catastrophic personal injury cases. He has successfully handled dozens of multi-million dollar cases.