America’s streets are not particularly safe for pedestrians. According to the Centers for Disease Control (CDC), more than 5,300 pedestrians were killed in traffic accidents in 2015. Another 130,000 pedestrians were injured in traffic accidents that same year. States like California and Illinois allow pedestrians who are injured in traffic accidents to file civil lawsuits to recover compensation from at-fault parties.
If you have been injured in a pedestrian accident you may be entitled to compensation for your injuries. Personal injury laws vary from state to state. It is important to speak with an experienced pedestrian accident attorney in the state where you were injured.
Negligence Following a Pedestrian Accident
In most states, personal injury claims are based on the argument that one person’s negligence caused another person to suffer an injury. Personal injury claims filed by injured pedestrians are no different. When a pedestrian is injured in an accident he or she will have to prove that another person was negligent. This other person could be a fellow pedestrian, a bicyclist, car driver, truck driver, or even the local government in charge of maintaining the sidewalks. In both Illinois and California, a person will be considered to be negligent when:
- They have a duty or responsibility to act in a way that would prevent foreseeable harm;
- They fail to fulfill this duty; and
- Another person suffers an injury or harm as a result of this behavior.
For example, imagine that a pedestrian was crossing the street at a marked crosswalk. A driver speeds through the intersection and hits the pedestrian, causing them to suffer serious injuries. The driver did not see the pedestrian because he was texting on his phone while driving. The injured pedestrian could file a lawsuit based on the fact that the driver of the car was negligent. The pedestrian would prove negligence by arguing:
- The driver assumed a duty of care when he began to operate a car on a public road;
- The driver breached his duty of care by texting while driving;
- The pedestrian was struck by the car and suffered injuries because the driver was distracted.
Comparative and Contributory Negligence in Pedestrian Accidents
While many state laws are generally based on the theory of negligence, those states may impose liability in different ways. California, for example, follows the theory of comparative fault. This means that you can recover compensation for an injury even if you contribute to the accident. A California victim can recover compensation so long as they are not 100 percent at-fault for an accident. The amount of compensation an accident victim can recover will, however, be reduced by the percentage of fault they are assigned.
For example, let’s say that the pedestrian in the above example was not crossing at a marked crosswalk. In California, pedestrians must generally cross a street at an intersection. The pedestrian is then determined to be 50% at fault for the accident. If the pedestrian suffered $100,000 in damages, he would only be able to recover $50,000 in a personal injury lawsuit against the driver.
In Illinois, prior to 1981, the state followed the rule of pure contributory negligence. This meant that you were prohibited from recovering anything if you were partly to blame for an accident. In 1981, however, the Illinois Supreme Court replaced contributory negligence with a type of modified comparative negligence. Today, a personal injury accident victim’s ability to recover compensation will depend on the degree to which they contributed to an accident. A victim who is determined to be 51% or more at fault for an accident is barred from recovering anything at all in a personal injury lawsuit. A victim who is determined to be 50% or less at fault for an accident may recover compensation. However, the amount they are entitled to recover will be reduced by their determined percent of fault for the accident.
Here’s an example. Imagine that a Chicago pedestrian was walking down the right-hand side of a road that was paved with sidewalks. However, he was not on the sidewalk. The pedestrian then decides to cross the street and takes a diagonal path to the opposite side of the road. A car traveling down the road hits him when he starts to cross. Pedestrians in Illinois have a duty to act with reasonable care when walking on the road. Specifically, they must use sidewalks when available and must cross at a right angle. This means that walking on the wrong side of the road, failing to use a sidewalk, and taking a diagonal path to cross the road are all behaviors that violate this duty. The pedestrian decides to file a lawsuit against the driver. However, although similar cases could result in recovery by a plaintiff, in this particular case, the jury determines that the pedestrian was 60 percent at fault for the accident. As a result, he is barred from recovering compensation in a personal injury lawsuit. This is because he has exceeded the 51% fault threshold, as permitted by law.
If this same accident happened in California, the pedestrian would be entitled to compensation. The amount would simply be reduced by 60%. So, if he suffered $100,000 in damages, he would only be entitled to recover $40,000. In Illinois, however, he is entitled to recover nothing.
Recovering Compensation After a Pedestrian Accident
Most state laws allow pedestrians to file a civil claim for damages after an accident. However, these same state laws may vary when a pedestrian’s own contribution to an accident is considered. In Illinois, a pedestrian may not recover compensation if they are 51% or more at fault for an accident. In California, a pedestrian may recover compensation even if they are 99% at fault for an accident. It is important to understand the specific state and local laws that will apply to your specific personal injury case. Hiring an experienced pedestrian accident injury attorney to handle your case is the best way to maximize damages.
About the Author: Sherwin Arzani is the owner of Citywide Law Group, a personal injury law firm located in Los Angeles, CA.