Over 6,000 pedestrians were killed in 2018, according to the Governors Highway Safety Association. Pedestrian fatalities have increased 41 percent since 2008 and now account for 16 percent of traffic fatalities. Everyone has heard the old adage, “the pedestrian has the right-of-way,” but, from a legal standpoint, that is not always correct. In an accident involving a pedestrian and a vehicle, a pedestrian can actually be at fault, in whole or in part.
The Fault of the Driver
A driver is “at-fault” or negligent if their conduct deviates from that of a reasonably prudent driver under the circumstances. In addition, a plaintiff must also prove that the driver’s negligence was the actual and proximate cause of their damages.
If a driver clearly fails to stop at a red light, crosswalk, or a stop sign, proving that the driver was at fault may be straightforward. Other common examples of negligent driving include driving under the influence, speeding, recklessness, or failing to acknowledge traffic signs or laws.
The Fault of the Pedestrian
A pedestrian can also fail to exercise reasonable care or prudence while sharing the roadway with vehicles. Jaywalking, crossing against a traffic signal, entering a street and/or highway while intoxicated, throwing items onto the roadway, intentionally trying to distract a driver, or walking on highways or areas where pedestrians are not legally allowed, would all be examples where a pedestrian may be considered at least partially at fault in an accident involving a vehicle and a pedestrian.
How is Fault Determined?
In a pedestrian vehicular accident, the plaintiff — the party bringing a claim to recover damages — has the burden of proving the following four elements:
- The driver had a legal duty to act with reasonable care when driving.
- The driver breached that legal duty through his/her negligent driving.
- The negligence of the driver was the actual and proximate cause of the accident.
- The plaintiff suffered damages as a result.
Sometimes determining fault, causation, and damages can require the opinion of expert witnesses, who will examine the evidence in the case and provide an expert opinion under oath. Accidents involving pedestrians and vehicles can possibly result in large claims of serious injuries, typically to the pedestrian.
Comparative Negligence: When Both Parties Are at Fault
In a pedestrian vehicular accident, not every case ends with the driver bearing complete fault for the accident. Shared fault — when negligence by both parties contributes to causing the accident — is relevant and may mitigate the driver’s overall liability if the pedestrian victim did not act with reasonable care. An analysis of shared negligence is considered under the legal theory of comparative negligence.
Louisiana follows a rule of comparative negligence, which means that a party is only liable to the extent that their conduct contributed to causing the accident. For example, if a pedestrian lies down in the middle of the road and a speeding driver hits them, the driver will likely be liable for damages, but their total liability will be reduced to the degree the pedestrian was responsible for causing the accident.
Quality Representation for Your Pedestrian Accident Claim
Pedestrian accidents can be complicated matters requiring not only legal expertise, but sometimes the opinion of reconstruction specialists, medical experts, and other investigative experts. Dealing with fault allocation and comparative negligence requires the experience and knowledge of a seasoned personal injury lawyer.
The facts involved in each case are unique and, while the information contained in this article is useful for informational purposes, it is not advice for your specific situation. If you have been injured in an accident in Louisiana, it is crucial that you speak with a lawyer directly about your particular circumstances.
Our team of experienced personal injury attorneys can work with you to ensure that your claim is handled properly, and you receive the compensation you are entitled to. Contact us today for a complimentary consultation of your case.