Republished with Permission © 2011 Nolo.
Here's what to do, and how to determine fault, if you hit a pedestrian. [Pedestrian accidents are a major focus of my practice. Portland is one of the country's most livable cities, and Oregon one of its most livable states. Part of the reason for this is the beautiful outdoors areas. This means a lot of bicyclists and walkers. More bikers and walkers means more Oregon bicycle and pedestrian accidents.]
Hitting a pedestrian while driving a car is a scary occurrence, but not uncommon. According to statistics gathered by the National Highway Traffic Safety Administration, over 60,000 pedestrians were injured in traffic accidents in 2006. Hitting a pedestrian at a speed of over 30 miles per hour results in more serious injuries and fatalities -- yet a driver can severely disable a pedestrian in a crash where the driver is traveling only 10 miles per hour. [Last year, Oregon set a record for pedestrian fatalities. Many of these pedestrian accidents occur in marked crosswalks. For more information on pedestrian accidents, click here or search my Portland personal injury blog
As a driver, it's important to know what to do immediately after an accident with a pedestrian. By staying calm and speaking to the right parties, you can minimize your liability. Drivers should also learn the basic rules of fault, how injuries and damages will be compensated, and most importantly, how to avoid such accidents in the first place.
What to Do Immediately After the Accident
Most drivers that hit pedestrians are extremely upset immediately after the accident. Take a deep breath and focus on the following:
Safety comes first. First, get any injured people to a place of safety. Do not attempt to administer medical treatment beyond what is required of you in an emergency, such as CPR.
Get medical and legal help. Next, contact the police, medical care providers, and auto insurance providers (the driver's and the pedestrian's). If you are facing possible criminal charges for the accident, such as driving under the influence, contact a criminal defense attorney for yourself if you can. When the police and your insurance agent arrive, give truthful statements to them about how the accident took place.
Exchange contact information, but not much more. If the pedestrian is not incapacitated, exchange your name, phone number, and insurance information with them. Avoid talking extensively with the pedestrian or their friends or family members. Admitting fault, or making statements such as "I feel so guilty," could expose you to a personal injury lawsuit. You should also avoid speaking directly to the pedestrian's attorney or auto insurance company. It is important to have your auto insurance company communicate with the pedestrian's attorney, auto insurance company, or pedestrian themselves.
[Neither the pedestrian nor the driver needs to determine fault at the scene of the accident, let alone admit fault. The determination of fault is made in the coming weeks as the pedestrian accident attorney begins to investigate the accident. The ultimate determination of fault is, of course, left up to the jury.]
Who Is at Fault?
When a driver hits a pedestrian, often the biggest question is: Whose fault was the accident? Generally, fault is determined by the law of negligence. A person who fails to exercise a reasonable standard of care under the circumstances may be considered "negligent." For a detailed discussion of negligence in car accident cases, read Nolo's article Car Accidents Caused by Negligence. [In general, as has been outlined in other sections of this Featured Article archive, we're talking again about the reasonable person standard. The judgment is made by a jury of your peers. What is considered reasonable driving or walking to a jury in Portland, Oregon may be different than what a jury in Astoria, Oregon considers reasonable.]
However, both the driver and the pedestrian can be negligent. For example, the pedestrian may be crossing the street illegally while the driver is traveling in excess of the posted speed limit. This scenario is treated differently in different states.
Some states, such as Maryland and Virginia, follow what's called a "pure contributory negligence" rule. This means that if the pedestrian contributed in the slightest bit to the accident, then he and his auto insurance company cannot recover damages from the driver and his auto insurance company.
Other states follow a "comparative fault" rule. This means that a pedestrian can recover some damages even if he was partly at fault. (To learn more about contributory and comparative fault, read Nolo's article Car Accident Defenses: Contributory and Comparative Negligence.) [As discussed above, Oregon follows a modified comparative fault approach, whereby if the plaintiff who brought the accident injury lawsuit was more than 50% at fault, the plaintiff cannot recover anything. If the plaintiff is less than 50% at fault, then the plaintiff's recovery is reduced by that percentage.]
Police Reports and Insurance Company Findings
The police will take statements from the driver, pedestrian, and witnesses to determine who was at fault. They may make a conclusive finding on the spot or conduct a detailed investigation to make the finding later. [Give the police accurate and thorough information. No detail is too small. Stay factual. Do not blame or become upset. Just tell the officer in as much detail as you can remember, what happened in the pedestrian accident.]
The police report from the accident will indicate which party the law enforcement officer saw as being at fault. Auto insurance companies, however, may dispute this finding. Insurance companies typically send an adjuster to the scene of the accident, or view the damage to persons and property soon after the accident has occurred. If you believe that your insurance company will unfairly assign you a greater percentage of fault, consider retaining a personal injury attorney to argue that you have a lower percentage of fault. [This is an argument that comes up in many Portland pedestrian accident cases. A skilled Portland pedestrian accident lawyer will know how to build your case and present your argument such that your fault, if any, is considered in the proper context. When done appropriately, this can minimize the impact on your personal injury case.]
Insurance Coverage for Pedestrian Accidents
Injured pedestrians are usually covered under their health and disability insurance policies, or worker's compensation coverage, if the accident occurs on the job. They may also be covered under one or more auto insurance policies. [If you have been injured in a pedestrian accident, insurance coverage issues can often be the first thing that you need to look at after the accident.]
Payment Under Auto Liability Insurance
An injured pedestrian can usually file a claim against the driver's or vehicle owner's auto liability insurance policy. Almost all states require that vehicle owners and drivers carry liability insurance to cover personal injuries to third parties and damage to third parties' property. Recoveries are dependent on whose fault the accident was and various state statutes. (For a primer on determining fault in car accident cases, read Nolo's article Car Accidents Caused by Negligence.) [Oregon requires appropriate insurance to cover all types of car accidents, including pedestrian accidents. If a pedestrian brings a lawsuit for personal injuries, effectively that pedestrian is making an insurance claim. Only rarely will the paying party be the actual driver themselves.]
Payment Under No-Fault Coverage
Some states, called "no-fault" states, require insurance companies to pay for the medical expenses and lost wages of their own policyholders, regardless of who is at fault. This is also known as personal injury protection (PIP). [Oregon has a PIP statute. PIP rules can be tricky. Many clients are unhappy when they realize that an insurance company has denied coverage for a particular course of treatment or stopped payment after a certain point.]
When it comes to coverage for injuries to pedestrians in no-fault states, laws between the states vary. In some states, the driver's insurance company pays the amount of the pedestrian's medical expenses up to the PIP limit, even if the accident is the pedestrian's fault. There are exceptions to this payment scheme. For example, in New Jersey, if a pedestrian is not insured, she or he may be paid out of a special state-mandated fund called the Unsatisfied Claim and Judgment Fund.
Seek a Lawyer's Advice
State laws vary widely when it comes to car insurance schemes, and each scheme has limitations and exclusions. In addition, recovery may depend on the particular insurance policies involved as well as judicial decisions in that state.
In order to sort this all out, injured pedestrians may want to seek advice from a professional, such as the pedestrian's own insurer or a personal injury attorney. Pedestrians should ask an attorney which auto insurer they should approach first, and from which insurer they might be able to receive additional coverage. [Be very careful when seeking out advice from an insurance company, even if it is your own. Many of my Portland personal injury clients simply assume that they are on the same side as their insurance company, after all, they have been paying this company premiums for years. This assumption does not always bear out. I would advise anyone reading this to seek the assistance of an experienced Oregon car and pedestrian accident lawyer if there is any material questions regarding insurance coverage.]
Avoiding Pedestrian Accidents
The best way to avoid pedestrian accidents is to understand that "defensive driving" means being wary of people who walk, use a bicycle, operate a wheelchair, rollerblade, rollerskate, ride an electric scooter, and play in the road. Pay particular attention to young children and older adults. These individuals may be less aware of drivers on the road. They are more likely to stray outside crosswalks and not pay attention to traffic signals. [This is may be the most important advice in this article. I would add, however, that defensive driving means no distracted driving. Stay off your cell phone, don't fiddle with the radio until you are stopped, things like this can help avoid car accidents and pedestrian accidents.]
It is important to remember that individuals who are not in a motor vehicle and are in the road are extremely vulnerable and more likely to be seriously injured than a driver. If you take care to give pedestrians notice, room, and time to move out of your path, you may be able to avoid hitting a pedestrian.
To learn more about dealing with insurance company, settling claims, and handling your own car accident case, get How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).
Special thanks to David Snyder, vice president and assistant general counsel of the American Insurance Association.