​Who Is At Fault When a Car Hits a Pedestrian?

​Who Is At Fault When a Car Hits a Pedestrian?

There is a common misconception that pedestrians “always have the right-of-way,” and when a pedestrian accident occurs, it is always the driver’s fault. The careless actions of drivers are commonly the cause of pedestrian accidents. However, it is not always true that the driver is at-fault, and pedestrians—like other roadway users—must yield the right-of-way to other public roadway users at certain times just as the drivers of motor vehicles are.

Here is a look at who is at fault when a car hits a pedestrian, whether an injured pedestrian can seek compensation from their personal injury protection (PIP) policy in no-fault states such as Florida, and why you need a pedestrian accident lawyer who can determine who caused the accident.

The Growing Problem of Cars, Pedestrians, and an Antiquated Transportation System

According to the Centers for Disease Control and Prevention (CDC), more than 7,000 pedestrians die on U.S. roadways every year, and around 104,000 people require treatment in hospital emergency rooms around the country for injuries sustained in non-fatal pedestrian accidents. These accidents occur in urban areas and sections of the road where no intersections exist.

Since the speed of motor vehicles tends to increase in such areas, and drivers do not expect pedestrians to be there, accidents occur more frequently. Pedestrian accidents are also more common at night when it is harder for a driver to see someone walking across or alongside the roadway.

The organization Smart Growth America notes that the increasing rate of accidents in which a pedestrian is injured or killed is a result of an antiquated transportation system in which roads were designed to move cars as quickly as possible to their destination without providing adequate protections for other types of roadway users, such as pedestrians and bicyclists. The problem, they say, is not evenly distributed for all roads and all Americans, however.

Individuals who walk roadways in low-income areas are far more likely to die in pedestrian accidents, as low-income communities are significantly less likely to have crosswalks, sidewalks, streets designed to command slower and safer traveling, and parks or other opportunities for outdoor exercise in locations that are away from moving traffic.

Both Drivers and Pedestrians Have a Legal Duty of Care

Both drivers and pedestrians have a legal duty to take reasonable actions to avoid causing harm to others. This duty is often referred to as the “duty of care.” One of the most reasonable actions a roadway user can take to avoid causing an accident that can result in others being injured or killed is to follow local and state traffic laws.

For drivers, this includes having a properly registered, insured, and maintained vehicle, avoiding illegal behavior such as speeding, failing to yield the right-of-way, driving while impaired, or texting while driving (which is illegal in 48 states, as well as D.C., Guam, Puerto Rico, and the U.S. Virgin Islands), or avoiding unsafe behaviors such as fatigued driving.

Drivers also have specific laws that pertain to pedestrians, such as the requirement to stop at crosswalks (all intersections are crosswalks, whether they’re marked or not) when a pedestrian has the right-of-way and not passing a school bus when it has deployed flashing lights, and its stop arm is extended.

However, pedestrians also have laws that they must follow. For example, pedestrians in Florida cannot cross between adjacent intersections or cross an intersection diagonally. They may not suddenly leave the sidewalk or dash into the roadway in front of a vehicle. When attempting to cross a roadway when they don’t have the right-of-way, the pedestrian must first ensure a sufficient gap in traffic to cross safely.

When the Driver is At Fault for a Pedestrian Accident

When a driver fails to take reasonable actions, such as operating their vehicle in accordance with local and state traffic laws, and a pedestrian accident results, they can be found liable for compensating the injuries incurred to the pedestrian.

Here is a look at some common ways drivers can be found liable for pedestrian accidents.

• The driver traveled faster than the posted speed limit or too fast for the weather or traffic conditions. As explained by the National Highway Traffic Safety Administration, speeding is a factor in nearly a third of all traffic fatalities, including many pedestrian accident fatalities. Speeding diminishes the time a driver has to see and respond to a pedestrian walking or crossing in their path and also increases the distance that a vehicle will travel after the driver has braked as the brakes work to pull the vehicle’s weight to a complete stop. Higher speeds also increase the force of a collision, resulting in more severe accidents. It is difficult for a pedestrian to judge whether they have sufficient space to cross the road when a vehicle travels faster than expected.
• Alcohol or drugs impaired the driver at the time of the collision. Alcohol and drugs impact a driver’s ability to drive safely, leaving them with a diminished ability to process visual information such as a pedestrian entering a crosswalk, maintain lane position and an appropriate speed, and respond adequately to emergency driving maneuvers.
• The driver was texting or otherwise distracted. There are three types of driving distractions, including manual distractions that cause the driver to take their hands from the wheel, leaving them less able to respond appropriately to a pedestrian in the roadway; visual distractions that cause the driver to look away from the road and increase the risk that they will miss the light turning red and a pedestrian entering a crosswalk; and cognitive distractions that draw the driver’s mind away from the task of driving safely, which can result in a “looked but didn’t see” type of pedestrian accident.
• The driver failed to yield the right-of-way to a pedestrian in the crosswalk, to a bus that was stopped with its lights flashing and stop arm extended, or attempted to pass a vehicle stopped at a crosswalk or behind a school bus.

When the Pedestrian Is At Fault for the Accident

As noted, the pedestrian does not always have the right-of-way, and the driver is not always at fault for a pedestrian accident.

Some of the ways that a pedestrian can be found at least partially at fault for an accident include:

• The pedestrian was walking down the middle of a travel lane or suddenly dashed into the path of an oncoming vehicle.
• The pedestrian failed to yield the right-of-way to other lanes of traffic at an intersection by crossing on a red light or crossing a non-intersection area without a sufficient gap in traffic to make it completely across.
• The pedestrian was walking while impaired by alcohol, which also deprives pedestrians of the response time and information processing capabilities needed to protect themselves from an accident.
• The pedestrian was wearing dark clothing and walking in a poorly-lit area where the driver could not see them.

Why Does Fault Matter?

When a pedestrian accident occurs, the driver who failed to take reasonable actions to protect others from harm is legally responsible for compensating the pedestrian for the expenses and impacts of their injury, generally through their liability insurance policy. However, if the pedestrian cannot prove that the driver was at-fault, they cannot seek compensation from that driver’s insurance policy through the personal injury claims process.

Seeking Compensation for Injuries Incurred in a Pedestrian Accident

The personal injury claims process typically begins with a claim for the expenses and impacts of the injury filed against an at-fault driver’s liability insurance policy.

When the insurer receives the claim, they will assign a claims adjuster to evaluate it and determine:

1. Was their insured party at fault?
2. Does the insurance policy the claim was filed against provide coverage for the type of accident and injury that was incurred?
3. How much compensation is owed to the claimant due to the expenses and impacts of their injury?

It is important to understand that the at-fault party’s insurance provider works for the insurance company. Their task is to protect their employer’s bottom line by reducing and eliminating claims as much as possible. After their evaluation of the claim is complete, they can either accept the claim, deny it, or offer to settle the claim out-of-court for less than its established value.

If the insurance provider does not resolve the claim either by paying it outright or engaging the claimant in a settlement agreement, a lawsuit can be filed in court. Lawsuits are legal complaints filed in civil court that ask a judge or jury to hear the case and decide whether liability has been determined and—if so—how much is owed to the claimant for the financial and psychological costs of the injury.

Can You Receive PIP Coverage for a Pedestrian Accident?

Several states, including Florida, require registered drivers to purchase a form of insurance known as a personal injury protection policy (PIP), commonly referred to as no-fault insurance. However, this policy does not mean that no one is at fault for the accident. This type of policy provides partial coverage of accident-related medical costs and wage loss after an accident has occurred, regardless of fault. This coverage is often the first line of compensation for those whose injuries are not serious or expensive enough to exceed the policy’s limits.

This coverage is available for the named insured driver and their household members and can be accessed when a covered person is injured in an accident involving a car. This means coverage is generally available for pedestrian accidents. An experienced personal injury lawyer can help you understand if you are eligible for coverage through your PIP policy or one held by a household member.

What if a Hit-and-Run Pedestrian Accident Injured Me? Can I Still File a Claim?

Each year, more than 2,000 people die in accidents involving a driver who fled the crash scene without waiting for a police officer to arrive at the scene and conduct an investigation. The majority of these accidents involve a pedestrian or bicyclist. Hit-and-run accidents are difficult, as you must have the driver’s name, the insurance provider’s name, and the policy number to file a claim. This information can usually only be found if the driver is identified or comes forward.

Even if you do not know the driver’s identity, it is still important to speak with an attorney about your claim, as they can help you understand the legal options available for you. This can include insurance policies that you hold, such as a PIP or medical payments policy, or even an uninsured/underinsured motorist policy. The claim can also be prepared in the event the driver is revealed and has an insurance policy that can cover the claim.

How an Attorney Can Determine Fault in Your Pedestrian Accident

Having a personal injury lawyer assisting you with your pedestrian accident claim provides the experience you need to stand up to an insurance provider who does not want to pay the claim.

Your attorney can determine your claim’s value, communicate with the insurance provider to negotiate a settlement that provides fair compensation, and protect your right to seek compensation for your claim by ensuring that a lawsuit is filed within the statute of limitations in your state. The lawyer can present your case to a judge or jury and recover compensation from a negotiated settlement or a court award.