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As long as pedestrians use a designated crossing area and obey traffic signals, they have the right of way and people driving have a legal obligation to avoid hitting them. If you were crossing in a crosswalk and were hit by a car, you may file a personal injury claim and lawsuit against the driver.
Claim against the Driver
Even if the pedestrian did not use a crosswalk, the driver is often judged to be at fault. Most states' laws include requirements that drivers remain alert to hazards in the road. This creates a legal obligation for drivers to both see and avoid anything in the road, which includes pedestrians.
If you did use a crosswalk, the driver is almost definitely at fault. Unless a pedestrian purposely runs in front of a car, such as an attempt to beat a traffic light, the driver assumes liability.
Of course, pedestrians do not have the right to cross wherever they choose. Jaywalking, or crossing outside of a marked crosswalk, is illegal. Pedestrians are expected to use common sense and act in a reasonable manner. If you crossed outside a crosswalk or can be proven to not have acted reasonably, you may lose your case against the driver.
Assigning fault establishes liability for the accident, and therefore any damages. If the pedestrian is proven to share some of the liability for the accident, then that portion may be deducted from the damages claimed. For example, if you crossed the street against a traffic signal, but the driver who hit you was speeding, you may be judged to share equal responsibility for the accident. This means any claim you make is likely to be reduced by half.
If you were distracted and wandered into the street as a result, you stand little chance of being successful in a lawsuit.
There may also be scenarios where more than one driver is responsible for hitting a pedestrian. For example, if the driver who hit you did so because he or she was swerving to avoid an accident with a reckless driver, you could sue both drivers. The reckless driver, even though he or she did not hit you, would likely share most of the liability and therefore pay the majority of the damages.
Unless you sustain damages, either to property or person, you cannot file a personal injury suit. In a personal injury case, the most common damages are compensatory damages. These are intended to reimburse plaintiffs for the financial costs of an accident, as well as the emotional costs. Punitive damages are reserved for cases of extremely egregious behavior on the part of the defendant, such as committing DUI or reckless speeding.
The intent of compensatory damages is returning the plaintiff to his or her state before the accident, at least from a financial standpoint. Out-of-pocket expenses are easily calculated, while other claims are harder to quantify, like pain and suffering.
- Medical expenses include any medical treatment you receive for injuries sustained in the accident. This includes insurance co-pays, doctor visits, surgeries, physical therapy, and chiropractic care. In addition, if your doctor recommends future medical treatment for your injuries, these costs are included.
- Lost wages include any missed time from work due to the accident, even if you received sick pay for the time missed. Also, if your injuries negatively impact potential future earnings, your claim for damages includes this item.
- Property damage includes any personal property damaged in the accident, including clothes or any items you carried at the time of the collision.
- Pain and suffering includes your pain and discomfort both during and after the accident, as well as ongoing pain attributed to the accident.
- Emotional distress includes the psychological impact of the accident, such as anxiety, fear, and insomnia.
- Loss of enjoyment includes an inability to enjoy everyday pursuits you used to do, such as exercise and hobbies.
- Loss of consortium refers to relationships, typically between spouses or parents and children. This may include sexual dysfunction or loss of companionship.
If the defendant's actions were particularly reckless or negligent, your suit may include punitive damages. The intention here is punishment and deterrence. Most states set caps on punitive damages, as these awards become quite high.
Schedule a Free Consultation
If you were hit by a car while crossing the street, schedule a free consultation with a personal injury lawyer to discuss your case. He or she will advise you on the merits of your case and help set reasonable expectations as regards possible damages.