Most people assume that, whenever there is an auto accident involving a motor vehicle and a pedestrian, the driver of the vehicle is generally at fault. In addition, it is also assumed that “pedestrians always have the right of way.” However, there are circumstances where a pedestrian can be the one at fault in a car-pedestrian accident.
The following are several examples of how a pedestrian can be at fault:
- If a pedestrian is jaywalking or crossing the street in a place not designated as a crosswalk. Many drivers are not expecting pedestrians to cross at those spots and may experience difficulty stopping their vehicle in time.
- Crossing an intersection when the crosswalk signal says not to cross.
- Crossing the street while intoxicated. Normal decision-making skills become compromised and normal movements become exceedingly difficult when under the influence.
- Walking onto a highway or highly traversed roadway.
All drivers are responsible for driving carefully under the given circumstances, so any cautious individual would take steps to avoid striking a pedestrian if possible. However, if the pedestrian acts in a way that makes it impossible for someone operating a vehicle in a cautious manner to avoid a crash, a judge or jury will typically find that pedestrian at fault for the collision.
Alas, not all accidents—including car-pedestrian collisions—have one completely guilty party and one completely innocent one. In many cases, both parties may have failed to act in a normal and cautious manner under the circumstances.
New York is one of only a few states that have “no-fault” car insurance and accident compensation. This means that if you are involved in a car accident in this state, you first file a claim with your own insurance for your injuries resulting from a crash.
However, under a limited set of circumstances where injuries are severe and permanent (e.g. broken bones, permanent impairment of limb or organ, substantial disfigurement, significant limitation of a body function, or substantively full disability for 90 days), then you can file a claim against the other driver’s insurance and, if necessary, a personal injury lawsuit. In regard to these additional claims, you may be able to obtain noneconomic damages such as pain and suffering.
But to be successful in additional claims, you need to prove some level of accountability on the other driver’s part. New York is a “pure comparative negligence” state, meaning that if your case goes to trial, the judge or jury will compare fault, calculate the percentages of fault for each party, and reduce damage awards accordingly.