Your Accident Attorney Weighs in on This Tough IssueYou have probably heard the saying, “The pedestrian has the right-of-way.” While that’s true, it depends on the situation. What it does mean is that when crossing legally, the vehicle must stop for the pedestrian. What it does not mean is that when the pedestrian is not crossing legally, vehicles are not forced to stop and wait for them. With this knowledge in mind, can you run down a jaywalker and suffer no consequences? Short answer: no; we live in a civilized country where we don’t kill people for mildly inconveniencing us. Longer answer: there are a few considerations we need to look at in order to determine who is at fault, what exactly happened, and where the blame lies when a pedestrian and vehicle accident occurred. Your accident attorney gives us some insight.
Adhering to the Law of Negligence
Anytime there is a personal injury, we have to take a look at the law of negligence. This law is enacted in all 50 states to determine who is able to recover for damages after an accident. But not all states have the same law of negligence on the books.
In Texas and Oklahoma, the two states where Herbert & Eberstein is licensed to help motorists recover for damages, the law is a “Modified Comparative Fault” with a 51% bar. Simply speaking, the amount they are able to recover is reduced by the percentage of at-fault they are deemed to be.
Without getting too technical (after all, that’s why you hire an attorney to help you with your accident), we’ll just consider one party to be completely at fault while the other party is not at fault. When we consider the law of negligence, we can determine that either the motorist or the pedestrian was to blame.
But wait, there’s more! We must consider the Duty of Care as well.
Understanding the Pedestrian’s Duty of Care
Pedestrians have what is called a duty of care, and are considered to be more influential in what happens during a pedestrian vs. vehicle accident. This assumes the accident occurred on the roadway and not on a sidewalk or in someone’s yard. The reason: the pedestrian determines when they step into the street to cross.
Assuming that they are crossing the street legally, they are fulfilling their duty of care.
But when a pedestrian crosses illegally, say when the sign says, “Do Not Walk”, while jaywalking (no crosswalk around), while intoxicated, or on a controlled access highway where pedestrian traffic is not legal, then they are not fulfilling their duty of care.
Just because the pedestrian does not fulfill his or her duty of care, however, does not mean they are automatically to blame.
Understanding the Driver’s Duty of Care
Motorists also have a duty of care. You and I cannot go barreling down the road without paying attention to what is around us. First, it’s not a smart way to drive if you appreciate your vehicle and your health. Second, being involved in an accident that you could have avoided (even if you’re not at fault), may reduce the compensation you can recover.
Take, for instance, driving in a subdivision. There are kids around, and you see that there are young children playing ball several hundred yards up. If you don’t reduce your speed while passing, and a child runs into the road to recover an errant ball getting hit by your vehicle, you could still be found at fault (or at least partially at fault) due to not considering your duty of care.
So, if someone is crossing (even illegally), you can’t just run them down because you’re sticking it to the jaywalkers.
What if a Third Party Comes into Play?
We have looked at driver vs. pedestrian, but what happens if you are driving, swerve to avoid a pedestrian, and strike a parked car?
Assuming the pedestrian doesn’t take off, or they are located later, there are solutions. The law of negligence will be taken into consideration (where the accident occurred and whether the pedestrian was in a crosswalk or not). The duty of care will be taken into consideration (how fast you were driving, if you were using your phone, if the pedestrian ran into the street, if any party was intoxicated). And the case will be analyzed to determine who is responsible for what damages.
Keep in mind that a pedestrian doesn’t likely have “walking insurance” and thus recovering damages may not be an easy process.
Contact Zach Herbert; Accident Attorney
Zach Herbert, from Herbert & Eberstein, is licensed to help motorists and pedestrians in both Texas and Oklahoma as their accident attorney.
Have you been hit by a car? Have you hit someone with your car? Is there some uncertainty around what happened?
You need to speak with an accident attorney. Give us a call at 214-414-3808 and we’ll offer a free, no obligation, initial consult to determine if you have a case.
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