Does a pedestrian have a case if a driver hits him while he is walking on or near the shoulder of a road in Florida?
I’ll use an actual case to explain the law, and how it affects a pedestrian’s injury case.
Pedestrian Sues Pizza Hut Driver
Dwayne Lang claimed that Zachary Jean, an employee of NPC International, Inc., d/b/a Pizza Hut, negligently operated his vehicle during the scope of his employment and hit Lang, a pedestrian, while delivering a pizza for Pizza Hut.
Pizza Hut tried to get the case dismissed, before trial, by arguing that the pedestrian couldn’t show that the driver was careless.
The accident occurred on January 16, 2014, around 9:30 p.m., while Lang was walking home from work. It was dark and Lang was walking northbound on 3rd Avenue East, in Palmetto, Florida, which is a residential street, not often traveled by automobiles.
There wasn’t a sidewalk
There was no sidewalk. Lang walked north on the right side of the road. His left foot was on the pavement of the road and his right foot was on the grass.
No street lights and dark outside
There were no street lights in the area and Lang, a black male, was wearing his Checkers’ work uniform that consisted of a black shirt, black pants, black socks, and black shoes.
Lang is six feet, 1 inch tall, and weighs 216 pounds. There was no traffic in either direction within the several minutes before the impact with Jean’s vehicle.
No obstructions to driver’s view
Nothing obstructed the view of the road or shoulder. Lang was looking straight ahead, walking in a straight line, and talking on his mobile phone in the minutes before the impact.
He did not cross the road or have two feet on the pavement within the minutes before the impact.
Jean’s vehicle had working headlights. Jean’s headlights were visible for several seconds before the impact.
Lang knew his body was illuminated by Jean’s vehicle’s headlights because he could see the shadow on the ground before him.
Pedestrian didn’t step in front of car
Lang did not dart or veer in front of Jean’s vehicle, but Jean’s front bumper struck Lang in his lower left leg. He was not struck by the side mirror.
No oncoming traffic
There was no oncoming traffic that would have prevented Jean from steering left to avoid hitting Lang. No one else witnessed the accident.
Lang had walked this same route home from work over fifty times. Pizza Hut stated that Jean attempted to take evasive action to avoid hitting Lang.
The court said that there are genuine issues of fact on the issue of Jean’s negligence.
Drivers Need to Keep Lookout
In Florida, drivers have a duty to maintain a proper lookout at all times and a duty to “exercise due care to avoid colliding with any pedestrian … and give warning when necessary.” Nelson v. Ziegler, 89 So. 2d 780, 783 (Fla. 1956); see also Fla. Stat. § 316.130(15).
Pedestrians must walk on shoulder of road if no sidewalks available
Similarly, pedestrians have certain duties.
Here, “where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the shoulder on the left side of the roadway in relation to the pedestrian’s direction of travel, facing traffic which may approach from the opposition direction.” Fla. Stat. § 316.130(4).
Jury decides if driver used reasonable care
Notably, whether a driver has exercised reasonable care under the circumstances is generally for the jury to decide.
Pizza Hut Argued Case Should Be Dismissed: Dark Clothes, Walking on Wrong Side of Street
Pizza Hut argues that it is entitled to judgment because Lang was wearing dark clothing and placed himself in danger by walking on the right side of the roadway with his back turned to oncoming traffic while talking on his mobile phone.
The Court disagreed that these facts are sufficient to relieve Pizza Hut of any liability for Jean’s actions as a matter of law.
Most of the cases upon which Pizza Hut relied are based on darting cases, where a pedestrian, usually a child, darts or thrusts himself into the vehicle’s pathway while jaywalking.
Tip: Attorneys often cite past cases to help prove their case.
Most of these cases were decided before Florida adopted comparative negligence.
Pedestrian may still have case even if partially at fault
Comparative negligence allows a pedestrian to be partially at fault and still have a personal injury case.
Jury must decide if driver could have seen pedestrian
Here, there are material issues of fact related to whether Jean could and should have seen the pedestrian and observed him in time to have avoided the injury by the exercise of reasonable care under the circumstances.
The road was not a highway—it was a road in a residential area with little traffic. There were no oncoming cars at the time of impact.
Pedestrian only had 1 foot in road
Lang had only one foot on the road. He was walking in a straight line.
He did not thrust himself into the path of the vehicle; rather, the vehicle ran into his lower left leg.
Lang’s body was illuminated by Jean’s headlights for a period of seconds before impact. Lang is a large man.
And there is evidence suggesting that Jean saw Lang prior to the impact because he attempted to evade him. In other words, interpreting the evidence in the pedestrian’s favor, a jury could conclude that Jean should have taken evasive action sooner to avoid the impact.
The court did not dismiss the case. It has let the case continue on its way to trial.
What facts hurt a pedestrian’s case?
A pedestrian’s case may be worth less if a pedestrian is:
1. Wearing dark clothing (when it’s dark outside)
2. Walking on the right side of the road with his back turned to oncoming traffic
3. Talking on his mobile phone
Facts that May Help a Pedestrian’s Case:
A pedestrian’s case may be worth more if the pedestrian:
1. Is walking in a residential area with infrequent traffic – not a highway
2. There were no oncoming cars at the time of the impact. (This is because driver can’t argue he couldn’t swerve for fear of hitting an oncoming car.)
3. Only has one foot in the road
4. Was walking in a straight line
5. Did not throw himself into the path of the vehicle
6. The vehicle runs into the pedestrian’s leg or other body part
7. The car’s headlights illuminated the pedestrian for at least a period of seconds before the impact
8. The pedestrian is a large person (thus more easily visible to the driver)
9. The driver saw the pedestrian before impact (driver attempted to evade the pedestrian)
Pedestrian May Still Get Nothing
A jury can find that the driver wasn’t at fault for hitting the pedestrian who is on the side of the road. If this happens, the driver won’t owe the pedestrian any money.
On the other hand, a jury may find that the driver was completely, or partially, at fault.
If a jury awards the pedestrian money, will he be able to collect?
In the above case, the pedestrian’s ability to get money assuming he wins may depend on whether the jury believes that the driver was an employee of NPC (the Pizza Hut franchisee), or in the alternative, an independent contractor.
If the former, then NPC will be able to pay the jury’s award because they own and operates more than 1,275 pizza restaurants and delivery kitchens. In other words, they have money.
If the jury believes that the driver was an independent contractor, then the driver is the only liable party. This assumes that the pedestrian sued the driver, in addition to the pizza franchisee.
If the driver is an independent contractor, then the pedestrian will likely only get paid if the driver had business auto insurance with bodily injury (BI) coverage. In Florida, BI insurance is not required on the pizza delivery driver’s vehicle.
However, some restaurant corporations require their franchisees to have liability insurance that covers their drivers.
What can the pedestrian sue for in this case?
The pedestrian can sue for:
- Past Lost Income
- Future lost income reduced to present value
- Past medical expenses
- Future medical expenses
- Replacement value of lost personal property (e.g. damage to your car, broken glasses, watch, etc.)
- Reimbursement for mileage to and from medical appointments
- Past Pain and suffering
- Future Pain and Suffering
- Scarring and disfigurement
- Mental anguish
- Loss of capacity for the enjoyment of life
Is the law the same regardless of where in Florida this accident happened?
For the most part, yes. The result should be similar regardless of whether this crash happened in Homestead, Kendall, Miami, Coral Gables, Hialeah or anywhere else in Florida.
The case that I discussed is Lang v. NPC International, Inc., Dist. Court, MD Florida 2015.
It isn’t my case. However, I have settled many cases for pedestrians who were hurt in Florida car accidents.
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