Let’s assume that you are a pedestrian and you are hit by a motor vehicle (car, truck, etc.). Let’s take a look at whether a driver is at fault for striking a pedestrian.
If a car hits a pedestrian, and the pedestrian gets a ticket, does he still have a case?
Maybe. A driver may still be at fault even though the pedestrian gets the ticket. Pedestrian accident cases are rarely not black and what.
A driver usually has some fault. So don’t assume just because you receive a ticket that you don’t have a case.
You may have a great case!
Let’s take a look at the most common pedestrian crash types. I’ll then give my opinion on if the driver is at fault, and how it affects the pedestrian’s injury case.
Midblock Pedestrian Accidents
The above image shows a crash that occurs at a midblock. The pedestrian is not in an intersection.
Learn about a personal injury claim if a car hits a pedestrian at a midblock (not in an intersection) in Florida.
Vehicle Turn/Merge Pedestrian Crashes
A pedestrian and vehicle may collide while the vehicle was preparing to turn, making a turn, or had just finished a turn or merge. The vehicle could be a car, truck, taxi or other vehicle.
In this type of case, the driver typically has a large amount of fault because the pedestrian is walking where he is supposed to.
The pedestrian usually has little to no fault if he was walking in a crosswalk when the driver was making a turn and struck him.
Vehicles shall yield right of way to pedestrians lawfully in intersection or crosswalk
In Florida, violation of a traffic law is evidence of negligence. Check out these statutes (laws):
1. Vehicular traffic facing a circular green signal may proceed cautiously straight through or turn right or left unless a sign at such place prohibits either such turn.
But vehicular traffic, including vehicles turning right or left, shall yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.
Is a driver at fault for hitting someone who is handing out flyers or selling something in the intersection area?
Learn if a pedestrian has a case if a vehicle hits him while he is handing out flyers, selling something, or collecting money in an intersection in Florida.
Pedestrian should take pictures of any dents in the vehicle caused by the accident
A dent in the driver’s vehicle may reveal the point of impact. This can be huge for the case as it may be a factor in determining fault.
If you take pictures of any dents from the crash, be sure to date and time stamp them so you can later testify that they were taken after the accident, and not before.
How Does the Pedestrian’s Fault Affect the Case Value?
The amount of money that you get for your damages will be reduced by your comparative fault.
When the police officer makes the Florida traffic report, he or she usually will cite only one of the drivers with a violation. Sometimes the police officer does not issue a ticket to either driver.
Even if the other driver was cited, you could still be partially at fault as well. You should be sure to take pictures of the accident scene as sometimes accident scenes can change with time.
Pedestrian hit by a car while in crosswalk
If you were in a crosswalk and you were struck by a car or other vehicle, the car that hit you was probably at fault. But if you jumped out into the crosswalk and were hit, you would probably be somewhat at fault.
Pedestrian not in crosswalk and motor vehicle hits pedestrian
If were not walking in the crosswalk at the time of the accident, you may be partially at fault. This is because Florida law says that:
If you literally “jumped” out in front of a car, you may have a difficult case. If you were not in a crosswalk and the accident occurred at night you may be partially at fault.
Accidents when pedestrian is not in a crosswalk and accident happens at night
The darker it is, the more difficult your case is because the bodily injury (BI) liability insurance company for the driver will argue that the driver could not see you.
If you were wearing light clothing at the time of the accident, this helps your case because you can argue that the driver should have seen you and avoided hitting you.
Pedestrian Suddenly Walks or Runs into the path of a vehicle
“No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.” Section 316.130(8), Florida Statutes.
Tip: This Statute does not apply to two-year-olds because they cannot be found to be negligent.
Child Under 6 isn’t at fault for running into path of car
In Swindell v. Hellkamp, 242 So.2d 708 (Fla. 1970), the Florida supreme court held as a matter of law that a child under the age of six, who ran into the path of an automobile and was injured, could not be contributorily negligent because a child does not have the capacity to exercise “reasonable care” so as to hold the child responsible for his or her own acts.
This applies to a claim of comparative negligence as well. See Lindenfield v. Dorazio, 606 So.2d 1255, 1257-58 (Fla. 4th DCA 1992).
In the sad case (not mine) of Rosenfeld v. Seltzer, 993 So. 2d 557 – Fla: Dist. Court of Appeals, 4th Dist. 2008, two-year-old Veronica Rosenfeld was walking with her mother. They were walking down the sidewalk of their neighborhood.
Her mother stopped briefly to talk with neighbors. Veronica continued down the sidewalk. Mr. Seltzer, was backing out of his driveway and ran over Veronica, causing her death.
Parents Can Sue Driver if Child is Killed While a Pedestrian
The child’s father, as personal representative of the girl’s estate, and on behalf of the parents as survivors of their daughter, sued the driver. In Florida, the survivors may be entitled to recover mental pain and suffering damages for the death of a minor child.
The personal representative sued Mr. Seltzer, claiming that he was negligently driving his car. At trial, each side presented expert witnesses who testified as to whether Mr. Seltzer reasonably drove his car.
The Rosenfelds’ expert testified that Mr. Seltzer could have avoided the accident had he taken certain steps. The expert said that he did not take any of these steps.
The driver’s expert testified that he was backing up reasonably and he was not careless. He looked carefully through his side and rearview mirrors before slowly backing down the driveway.
Veronica would have been visible to Mr. Seltzer for only six-tenths of a second to 1.3 seconds, depending on her speed. She was thirty-four inches tall, while the vehicle’s rear bumper was thirty-seven inches high. Thus, once she was behind the bumper, Mr. Seltzer could not see her.
Parent has duty to supervise his or her child
The driver drafted a jury instruction on a parent’s obligation to supervise his or her child. The jury returned a verdict finding no negligence on the part of Mr. Seltzer.
The child’s parents were not awarded any money.
Tip: I did not talk about whether the child received PIP benefits. If the child’s parents’ owned a car in Florida, the parents’ auto insurer would have paid one $5,000 death benefit to them. Florida Statute 627.736(1)(a)(6)(c).
Death Benefits are in addition to the medical and disability benefits provided under the PIP coverage in an insurance policy. The insurer may pay death benefits to the parents directly.
If the parents’ did not own a car, a resident relative’s PIP may have paid the death benefits. While the parents are not required to use the resident relative’s PIP, it is always a good idea.
Did someone’s carelessness cause your injury in a Florida car crash or other type of accident?
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