When a pedestrian is struck by a car, they have limited protection against the impact of a vehicle, often resulting in severe injuries. In a pedestrian right-of-way state like California, it is generally assumed that when a pedestrian is hit, the fault lies entirely with the driver of the vehicle. However, comparative negligence laws allow the defense to attempt to minimize the driver’s liability if the pedestrian was not demonstrating an appropriate duty of care to themself.
Comparative negligence is a rule that allows for both the plaintiff and the defendant to be held liable for damages. In a situation where both parties were negligent, the court can issue percentages of fault, requiring each party to pay damages to the other, or mitigating the liability of the defendant. Comparative negligence follows the general understanding that the plaintiff does not have the right to recover what they contributed to the accident.
Legally, a pedestrian is considered someone walking on foot, and excludes individuals using personal transportation such as skateboards, roller skates, strollers, and wheelchairs. While pedestrians do have the right of way in an intersection, meaning vehicles have a responsibility to yield, pedestrians are still responsible for the duty of care for their own safety. Drivers do have a duty of care to others on the road, including pedestrians, and are expected to slow down, stop, and control their vehicle to protect the safety of pedestrians.
Examples of pedestrian negligence that can impact a case include:
- Suddenly leaving a curb
- Stopping in the middle of an intersection
- Blocking traffic
- Walking or running into the path of a vehicle
- Distracted walking, such as being on your phone or listening to music
How is liability determined?
Throughout the case, lawyers will submit discovery evidence and witnesses to help the judge or jury identify the cause of the incident and the amount of fault that the defendant and plaintiff contributed. Some cases are more straightforward but others require extensive deliberation. If the defendant can prove that the plaintiff’s negligence added to the resulting injury, the plaintiff’s damages will be reduced by a percent of the fault decided by the judge or jury.
California follows “pure comparative negligence” laws which allow the plaintiff to recover any portion of damages, even if the plaintiff is primarily responsible for the accident. If there are more than two parties liable in a lawsuit, the same principles apply, with the division of fault distributed by percent.
Pursuing damages in personal injury accidents can be frustrating and challenging, especially when more than one party is responsible for the negligence that caused the accident. Cyclist accidents and pedestrian accidents are common shared-fault accidents that result in complex scenarios and typically severe injuries.
If you or someone you love has been injured or killed in a vehicle-involved pedestrian accident in California, contact the personal injury attorneys of Bostwick & Peterson to discuss your case and gain a better understanding of your rights