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Can I recover for Personal Injury if was Hit by a Car when Crossing the Street?

Being hit by a car as a pedestrian would ordinarily leave the pedestrian thinking that they likely have a personal injury case against the driver of the vehicle. The fact is, however, those cases are not necessarily clear-cut. Whether and how liability is assessed and assigned depends on the actions of the parties involved. The driver of the vehicle has a duty of care which he or she must meet. Likewise, the pedestrian has a duty of care which he or she must meet. Whether liability accrues against one party in favor of the other is the result of an assessment of the actions and facts associated with the incident, considering the comparative fault of the parties.

In each personal injury case, we must analyze the facts and determine the duty of care; whether a breach of that duty has occurred; whether that breach has caused the injury; and damages to the plaintiff. For both the driver of a personal vehicle and a pedestrian, we are talking about whether each respective party took ordinary care in their actions--that is, did each of these individuals take the care one reasonably would be expected to take in similar circumstances?

There is no hard-and-fast rule as to how diligently an operator vehicle must be looking for potential pedestrians who are about to cross the street. Drivers are required to operate their vehicle in a reasonably safe manner. Likewise, there is no hard-and-fast rule regarding what a pedestrian must do before entering in roadway. The pedestrian must use reasonable care when crossing the road.

These concepts are best parsed out with extreme examples. Take this first hypothetical situation: Imagine the driver operating his vehicle at 30 miles per hour on a clear day. The operator can see a pedestrian initiating a cross of the street some hundred yards ahead. There is no other traffic on the road. When the pedestrian is one quarter of his way across the street, the driver of the vehicle realizes that if he does not slow, he will strike the pedestrian. Instead of slowing, the driver accelerates the vehicle and swerves to the other side of the street, driving on the wrong side of the road. Confused as to what the driver is doing, and unsure which way to run to evade the oncoming car, the pedestrian freezes in the middle of the road and is ultimately hit by the oncoming vehicle. Who met their duty of care in this hypothetical situation?

Well, it seems that the pedestrian had plenty of time to get across the street; on a clear day, I would assume that the pedestrian could see that the driver was able to see pedestrian was in the middle of the street. It is reasonable to expect from the pedestrian's perspective that the driver would start slow, allowing the pedestrian to safely make it across the street. Accelerating the vehicle and moving to the wrong side of the road that does not, in my opinion, seem to meet the duty of taking reasonable care given circumstances. My impression is that the driver in this hypothetical was operating in an unreasonably dangerous manner. However, remember that this is a question for the jury. Although I have my opinion based on the facts that I have provided, there may be more facts involved; the jury would ultimately size up of the testimony and evidence of each party and come to a conclusion as to all issues of fact and law.

Let's take a less clear example. In this example, the sun is going down and it is on the horizon directly in front of the vehicle, which is operating at 30 mph in a suburban area. The speed limit is 30 mph and the driver's operating within the law. Traffic is moderate on the street, with vehicles going in both directions. There are vehicles ahead and behind our driver, and there are vehicles passing on the other side of the road in the opposite direction about every 5 to 10 seconds. Additionally, there are parked cars on both sides of the street with few open spaces. The driver of the vehicle has put on sunglasses and put down the sun visor to protect himself from the direct sunlight straight ahead. The pedestrian has walked to the edge of the street just between a line of parked vehicles in the lane of traffic. The pedestrian stands and waits for an opening large enough to safely cross the street. The pedestrian watches the cars come up the street and believes that he has identified a space to safely run across. He ensures that traffic has stopped running on the other side of the street and then turns his attention back towards the oncoming traffic. However, due to the size of the vehicle in front of our driver, the pedestrian does not see our driver's vehicle. The pedestrian readies to run across the street and just as the vehicle ahead of our driver passes takes a step out. Immediately, seeing the pedestrian, the driver slams on the brakes, the car skids, and it comes to a halt. As this is happening, the pedestrian realizes there is an oncoming car and immediately reverses course. However, each party reacts too late, and the vehicle strikes the leg of the pedestrian.

In this second hypothetical, who has what duty, and who has breached his or her duty? You can see how the issue becomes murky. And, if you recall our discussion in a previous blog regarding comparative negligence, you'll remember that if the injured party's negligence is assessed to be at least that of the other party defendant, there will be no recovery in tort for the plaintiff.

As a society, we generally expect people to operate their vehicles at an elevated duty of care. The reasonableness expected of a driver is to be vigilant for pedestrians who might potentially walk into the road. When assessing liability of the parties in a case like this, the jury is likely, given this fact pattern, to assess fault more for the driver of the vehicle. However,litigation can be unpredictable, and when discussing all the facts of this case, the jury may conclude that the pedestrian has fault to such a level that he is unable to recover in this action. The presentation of evidence and argument is critical in the case of this nature.

I highly recommend, if you've been the victim of a pedestrian accident, that you speak to an attorney who understands this area of practice. There are many attorneys who take on personal injury actions, particularly in Massachusetts, but you are better served if you have an attorney who focuses exclusively in this practice area. There are personal injury cases that are relatively clear-cut, yet many cases have complexities that neither the injured party nor an inexperienced attorney may initially realize. To give yourself the greatest advantage, consult with a personal injury lawyer who handles exclusively personal injury cases. We are happy to discuss your case with you in a confidential and free attorney case assessment. Called today to schedule yours.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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