In an unusual pedestrian accident, a girl apparently jumped onto a tow truck’s ramp as it was unloading a vehicle. She was the 48th pedestrian fatality in San Jose in 2020.
The incident occurred in the Rancho area of San Jose on the Monterrey Freeway. According to investigators, an operator was removing a truck when a girl suddenly jumped on the platform. As the truck rolled forward, it hit the girl. Emergency responders rushed her to a nearby hospital, where she was subsequently declared dead.
None of the names were released.
First Party Liability
Most pedestrian fatalities are people hit while they are trying to cross the street. Since most of these incidents occur outside marked crosswalks and the pedestrian is often crossing against the light, these claims are legally complex.
However, no matter what risks pedestrians take, drivers, or in this case tow truck owners, have a duty to avoid accidents when possible. So, most pedestrian accidents involve the ordinary negligence doctrine.
To establish liability in these cases, a San Jose personal injury attorney must establish negligence, or a lack of care, by a preponderance of the evidence, or more likely than not.
Failure to properly secure a vehicle on a tow truck bed is clearly a lack of care. The same thing can be said for failure to ensure that no children are around and in harm’s way. It is very unlikely that jurors would see such items as one-time lapses that could have happened to anyone.
As for a preponderance of the evidence, picture two equally-sized stacks of paper side by side. If a person moves a sheet from the left to the right, the stack on the right is higher. That’s a picture of the preponderance of the evidence.
Damages in a pedestrian accident claim usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Since pedestrians often sustain catastrophic injuries in these situations, this compensation is usually substantial.
Third Party Liability
Drivers are legally responsible for the damages they cause. A third party, in this case an employer, is often financially responsible for damages. Vicarious liability is especially important in catastrophic injury claims, like a wrongful death. Individual tortfeasors (negligent drivers) often do not have enough insurance coverage to provide fair compensation.
Employers, like a tow truck company, could be financially responsible for damages under the respondeat superior rule. This doctrine has two major prongs:
- Employee: Independent contractors, like Uber drivers and tow truck drivers, are typically employees for negligence purposes. The employers control these individuals in areas like hours worked or routes travelled.
- Scope of Employment: California law also defines this phrase very broadly. Any act which benefits the employer in any way is within the scope of employment. Even something like driving an empty tow truck qualifies as such. The free advertising benefits the employer.
Additionally, the injury must have been a foreseeable consequence of the employer-employee relationship. Foreseeability does not come up very often in this context, unless the tortfeasor broke into the garage and stole a car.
Other employer liability theories, which often apply in assault or other intentional tort claims, include negligent hiring and negligent supervision.
Contact a Savvy Attorney
Tortfeasors are not always financially responsible for damages. For a free consultation with an experienced San Jose pedestrian accident attorney, contact Solution Now Law Firm. We routinely handle matters in Santa Clara County and nearby jurisdictions.
Resource:
mercurynews.com/2020/12/30/san-jose-fatal-collision-with-truck-claims-young-girls-life/
