The year-round nice weather in California usually means that there are many pedestrians outside almost all year long. So, one would think that drivers would keep a more careful lookout for pedestrians in California. Yet in 2018, pedestrian accidents in the Golden State hit their highest level since 1990. So, that’s apparently not the case.
Even if the victim was not inside a marked crosswalk or crossing against the light, a San Jose personal injury attorney can usually obtain substantial compensation in court. Drivers always have a duty of reasonable care, which includes a duty to avoid accidents if possible. Striking a pedestrian, usually because of a failure to look, clearly violates this responsibility.
Most pedestrian accidents occur in non-intersections. So, the tortfeasor (negligent driver) is often traveling at or near maximum speed at the moment of impact.
This reality is very bad news for victims. If the tortfeasor is travelling slower than 20mph, these collisions are rarely fatal. If the tortfeasor is moving faster than 50mph, these collisions are almost always fatal. That’s especially true if the victim was a small child or older adult.
Roadway design also contributes to some pedestrian accidents. To keep vehicle traffic flowing as quickly as possible, most California streets have wide, straight lines and short red lights. So, if the victim has any mobility impairment, like a limp or short legs, it’s almost impossible to cross the street safely, crosswalk or no crosswalk.
Usually, the government is not responsible for such injuries. Tortfeasors have a duty to slow down and watch for pedestrians. They simply do not fulfil this duty.
Compensation is available if the victim/plaintiff proves negligence, or a lack of care, by a preponderance of the evidence, or more likely than not. The lack of care could be a lack of reasonable care or the violation of a safety law.
As mentioned, motorists have a duty to watch out for pedestrians, especially at certain times and at certain locations. For example, drivers should expect to see children on neighborhood streets after school and during school vacations. So, they should adjust their driving habits accordingly.
In California, the violation of a safety law, like a failure to yield the right-of-way to a pedestrian, is called negligence per se. This doctrine usually only applies if the victim was in the crosswalk and walking with the light. These kinds of pedestrian accidents are rather infrequent.
After a victim/plaintiff establishes a prima facie case, the insurance company can offer defenses in an effort to reduce or deny compensation.
Distracted walking, which is an offshoot of contributory negligence, could reduce the amount of compensation the victim/plaintiff receives. Essentially, distracted walking shifts blame for the accident from the tortfeasor to the victim. Distracted walking typically involves device distraction.
Sudden emergency could defeat a damage claim altogether. This legal doctrine excuses negligence if the tortfeasor reasonability reacted to a sudden emergency. Insurance company lawyers often try to stretch this defense to pedestrian accidents.
But a jaywalking pedestrian is usually not a sudden emergency in this context, even if the pedestrian runs into traffic. Drivers should be ready to deal with these emergencies, just like they should expect to encounter large potholes and stalled cars.
Pedestrians risk serious injury every time they cross the street. For a free consultation with an experienced personal injury attorney in San Jose, contact Solution Now Law Firm. You have a limited amount of time to act.
Resource:
Solution Now Law Firm
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