A car may weigh a couple of tons, and when it moves it can be dangerous. This is true especially if you are a pedestrian and are hit by that car. If you are hit, the consequences can be deadly; in 2018 alone, 123 pedestrians were killed in car accidents in Washington State. Anyone hit is faced with a long, painful road to recovery. If you are seriously injured by a vehicle, your hope is that others will contact police and emergency responders for you. If there are bystanders, they might gather witness names and numbers. But once you begin receiving care, you’re bound to have other questions. What happens next? Does the law hold any protection for me as a pedestrian?
Pedestrian Rights
Pedestrians have specific rights and protections under the law. In Washington State, you’re a pedestrian if you’re on foot, in a wheelchair, or are operating any vehicle under your own power (excluding bicycles). If you’re rollerblading, skateboarding, or using a scooter, you’d qualify. This also includes someone trying to get their car out of a ditch onto the road, workers working in the street, and someone pushing a cart along the road. In each instance, the onus is on the driver to avoid hitting a person.
By law, every driver must exercise due care when driving, especially around pedestrians. Due care is what a reasonable person would consider safe driving behavior, whether it’s strictly legally required or not. This means drivers will
- Stop at every cross walk if a pedestrian is present
- Keep their phones out of their hands
- Check, and then double-check, when making a turn to see if someone’s in the way
- Never drive under the influence or when sleepy
- Pay attention to weather conditions and traffic and slow down if necessary
- Pass at a safe distance
Failure to abide by any of these expectations (among others) would qualify as negligence and put the driver at-fault for any pedestrian accident. A driver must also respond appropriately if they hit someone.
Every driver who hits a pedestrian has not just a moral but a legal duty to remain at the accident scene. If they can’t stop for some reason, they must immediately return and provide whatever aid they can. Anyone fleeing faces a Class B Felony charge if the pedestrian dies, which means up to 10 years in prison and a fine of up to $20,000.00. If the pedestrian was “merely” injured it’s a Class C Felony, with up to 5 years in prison and a fine of up to $10,000.00. But pedestrians also have responsibilities.
Pedestrian Basic Duty of Care
Pedestrian right-of-way on roads isn’t absolute. They must also exercise a basic duty of care, including abiding by rules any reasonable person can follow. This means pedestrians must
- Obey all traffic signals
- Cross at crosswalks
- Look both ways before crossing
- Carry a flashlight or wear reflective clothing if it’s dark
- Protect their kids if they’re near a road
- Avoid being under the influence while walking
Failing to follow every step doesn’t mean you’ll be at-fault for an accident. Drivers have a greater duty simply because of the damage a vehicle impact can do to a human body. But pedestrians need to watch out for their own safety because sometimes the damage is catastrophic.
Evidence For Pedestrian Accident Case
If you’re hit by a vehicle, serious injuries are common. You may suffer damage to muscles and ligaments. Broken bones may require long-term therapy and possibly surgery, especially for compound fractures (when the bone breaks through the skin). Head injuries might range from minor headaches to skull damage to traumatic brain injuries. Spinal cord and vertebrae damage is also possible, which could result in partial or total paralysis. No matter how badly you’re hurt though, you’ll need as much evidence as possible if you hope to be compensated.
Evidence makes or breaks any pedestrian accident case, and it needs to be gathered right away. You want statements from as many witnesses as possible while their memories are fresh. Those will be given more weight than your own because they’re independent parties with no interest in your case’s outcome. Police investigation is important to determine how the accident occurred. They can, for instance, investigate speeds. “Obtaining speeding info will likely aid in the liability investigation of an accident,” attorney Liandra Tiller explains. “Speed increases the distance a vehicle travels from the time a driver detects an emergency to the time the driver reacts. Additionally, it increases the distance needed to stop to avoid the emergency. These calculations are sometimes important in determining who is at fault.”
Video footage is also key, especially from traffic cameras that might have caught the accident. Ideally businesses will release any footage they have, but they need to be contacted immediately so they don’t delete it. It’s also important to take videos and photos of the accident scene and your own injuries if you can. Even with this evidence, though, the issue of comparative fault will be considered.
Accidents and Your Responsibility
All accident cases in Washington State are subject to the standard of comparative negligence. This means that if you contributed to your accident, your damages will be reduced by the percentage for which you’re found at-fault. If, say, you were found thirty percent at-fault and your damages were $100,000.00, you’d only be entitled to recover on $70,000.00. Most of the pedestrian rules mentioned earlier will add to comparative negligence if they’ve been ignored.
In addition, pedestrians must do what they can to avoid an accident. Sidewalks should be used whenever possible. If there isn’t one, people must walk on the left side of the road so they’re facing oncoming traffic. If you step into the road so suddenly that a driver can’t stop, you’ll almost certainly be put at-fault. And if a driver misses you but hits another vehicle or a structure, you could be liable for their injuries and the physical damage caused. Comparative negligence is ultimately defined on a case-by-case basis, and many other factors are considered.
Age can matter, as in Washington no child aged six or under is capable of contributory negligence. Highway workers also receive extra consideration, as they’re on the job and entitled to perform their duties without having to worry about negligent drivers. “Pedestrian cases often happen on non-roadways (i.e., parking lots) or non-crosswalks, which often triggers a question as to who was really at fault,” states attorney Tiller.
Comparative Negligence
Addressing comparative negligence, she adds “Attorneys will often use expert testimony to establish that even if their client did something wrong, the accident would have still occurred due to the other driver’s negligence. The argument is that the accident would have still happened even if the client had acted perfectly in the situation.” To give you an example of how comparative negligence can be applied to both pedestrian and driver, consider the following.
Say you’re waiting on the side of a street in the rain and are listening to music. You take a quick look left and right, and as you don’t see any oncoming vehicles you begin walking across the road. Suddenly, someone pulls out of a parking spot, and before you can react, they hit you. Comparative negligence could be asserted against you for failing to cross at a crosswalk and for being distracted by music. But it could also be asserted against the driver if they were on a phone call and were distracted, or if they sped even though it was raining, and they should have slowed down.
It could also be asserted because, even though you weren’t at a crosswalk, they should have seen you and stopped. “Another means to counter a comparative negligence argument is that, even though the client did something wrong, the other driver had the last chance to react, and the reaction of a reasonable driver would have resulted in complete avoidance of the accident,” attorney Tiller explains. All these factors would be considered in determining liability. This can be very important to a pedestrian because it means you can access a driver’s auto insurance medical coverage.
Personal Injury Protection (PIP)
It is sadly the case that many people hit by cars don’t know they can access the Personal Injury Protection (PIP) on the insurance policy of the driver who hit them. You are entitled to this, as RCW 48.22.005 5(b) defines an injured person as including a “pedestrian accidentally struck by the insured automobile.” If that driver’s insurance accepts fault, PIP only pays for reasonable medical bills. Drivers aren’t required to purchase this coverage, but if they do benefits can run anywhere from $10,000.00 to $35,000.00. An insurance adjuster should always prove that the driver has no coverage with a signed rejection form. If they can’t find one, they might have to extend coverage to you. You may also be able to file a claim with the Crime Victims Compensation Program in the event of a hit-and-run. While getting your medical bills paid can be a major relief, there is still the matter of getting your claim settled.
Two Types Damages You Can Recover
At settlement there are two types of damages you can recover – special damages (tied a specific dollar loss), and general damages (not tied to a specific dollar loss). Your special damages include not just medical bills but any lost wages and any damaged property (i.e., physical items). General damages can be harder to define, as they go beyond your pain and suffering. They include a loss of consortium with your spouse or children, being unable to do basic daily activities like bathing, dressing, and eating, and being unable to do the activities that gave life meaning. But when it comes to recovering damages, you might not be restricted to just the driver who hit you.
You are entitled to compensation from every party who caused your accident to the extent of their contribution. A premises liability case might be made against a property owner who helped cause your accident. This might be against a municipality responsible for keeping the sidewalk and streets in a safe condition. For example, if they didn’t properly maintain the roadway, someone might lose control of their vehicle and hit you.
A case could also be brought against private business owners, as it’s their job to have proper lighting, and sometimes to clean sidewalks. If someone backs out of a lot and hits you because they can’t see you in low lighting, that may make the business liable. Most rules applicable to drivers also apply to cyclists, and if one blows through a stop sign and hits you, they’d be at-fault just as if they were driving a car. Regardless of whoever is at-fault, though, pursuing these claims is challenging. You’re going to want an experienced personal injury lawyer to make your case.
Never delay talking to a personal injury attorney after being hit by a car, and never sign anything before you do. “Insurance companies will typically try to offer a pedestrian victim a low payout, worth far less than their actual damages, to close the claim quickly,” attorney Liandra Tiller explains, “but an experienced attorney will be able to appropriately assess the true value of your claim and assist you in obtaining full compensation that is fair.” They can explain what you should and shouldn’t say to insurance and will deal with them on your behalf.
They’ll also investigate your accident and gather all available evidence, including talking to witnesses and the police. That will be just one part of a deep look into your accident’s causes, so that they can establish how comparative negligence does not apply. Additionally, any experienced pedestrian accident lawyer who is concerned about your best interests will be able to refer you to doctors they have established relationships with so that you can focus on your recovery. And should any offered settlement be insufficient and litigation necessary, they know what to do.
Limitations on Filing a Lawsuit
In Washington State you have three years from your accident date to file a lawsuit, and your pedestrian accident attorney will make sure time doesn’t run out. Threatening a lawsuit can give an edge in negotiations, but if the at-fault driver’s insurance won’t budge, there may be other options. A mediator might help facilitate discussion on what a reasonable settlement could be, and a third-party arbitrator might be able to render a binding or non-binding judgement. But if a trial can’t be avoided, your trial lawyer will be there to make your case.
Your personal injury lawyer will call medical experts to testify as to just how badly you were hurt, and to connect any lingering injuries to your accident. They’ll also call independent experts like accident reconstructionists to lay out the facts of what happened in a clear, sequential manner. This is especially useful when the defense might make claims of low visibility, illegal crossing, or even darting into the road as defenses. Finally, they’ll know how to screen out potential jurors biased against accident victims and will be able to unify everything into a compelling story that shows jurors you deserve justice for what happened to you. No one wants to go to trial, but if it can’t be averted, you’ll want the best accident trial lawyer possible.
When you’ve been hit by a car, getting justice can seem hopeless. You may be drowning in medical bills and face losing your job as you heal. You might have a lifetime of health problems ahead and may never fully recover. But help is available. We at Park Chenaur and Associates have years of experience and a record of winning pedestrian accident cases. We know what your challenges are like, and you won’t have to deal with them alone.
