How to file a successful claim for a pedestrian personal injury accident
There are so many benefits to walking. Being a pedestrian has become more popular as people are increasingly conscious of the health benefits of walking and the eco-friendly considerations of using less of the planet’s resources.
While New York City is only one small part of New York State, it has been ranked one of the most pedestrian-friendly cities in the world. In fact, Insider.com named NYC as one of 14 cities that are better for pedestrians than for people with cars — along with Venice, San Francisco, Paris, Madrid, Philadelphia, Boston and others.
New York City isn’t the only walkable community, though. Walk Score, an organization whose mission is to promote walkable neighborhoods, offers a ranking of the 111 largest cities and towns in New York State by walkability.
Here are the top 10 New York cities by their walk score:
Source: Walk Score
However, as more people become pedestrians, there’s more potential for traffic accidents.
New York pedestrian accident statistics
The Governor’s Highway Safety Association (GHSA) released 2018 data on pedestrian traffic fatalities. Interestingly, the rate of pedestrian fatalities steadily decreased from 1990 to 2009, but has increased steadily since then.
Source: GHSA Spotlight on Traffic Safety
The report also indicates that New York state had 117 pedestrian fatalities from January to June 2018, which makes it the 6th highest for that time period nationwide.
Statistics don’t tell the whole story, though.
Although New York State has a high number of pedestrian fatalities, part of the reason is that it has a higher population than many states, and therefore more pedestrians. In fact, during that same time period, New York state had only 0.60 pedestrian fatalities per 100,000 population. By fatality rate (pedestrian fatalities per 100,000 population), New York ranked 32nd in the nation.
New York’s pedestrian rights and laws
Don’t let the statistics deter you from walking. There are laws designed to protect pedestrians, and you can be proactive by knowing the laws and following safe practices.
The following are New York laws that apply to pedestrians:
- Pedestrians must obey traffic control signals when crossing the street.
- A driver must yield the right-of-way to a pedestrian in a crosswalk if there’s no traffic signal.
- A driver must yield the right-of-way to any pedestrian accompanied by a guide dog or using a white or metallic cane approaching an intersection or crosswalk.
- A pedestrian must yield the right-of-way to vehicles if there is no crosswalk.
- A driver must yield to a pedestrian when entering or exiting from an alleyway, building, private road, or driveway.
In addition to each of the rules listed above, New York law provides that a driver must provide due care to pedestrians:
Drivers to exercise due care. Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian or domestic animal upon any roadway and shall give warning by sounding the horn when necessary.
Pedestrian safety tips
Everyone is a pedestrian at some time... whether it’s walking from the parking lot to a place of business, walking your dog, or any other time you’re on foot where cars are driven.
The National Highway Traffic Safety Administration (NHTSA) offers these tips to keep yourself safe:
- Follow the rules of the road and obey signs and signals.
- Walk on sidewalks where available.
- If you’re unable to use a sidewalk, walk facing traffic.
- Be alert and keep your eyes on the road (don’t look down at your phone or other device while you walk).
- Cross at a crosswalk or intersection where available, but still watch for cars in all directions, including those turning left or right.
- If there’s not an available crosswalk or intersection, cross in a well-lit area where you have a clear view of traffic (and where drivers can see you). Wait for enough of a pause in the traffic that you’ll have time to cross safely.
- Don’t assume a driver can see you. Make eye contact with a driver before crossing in front of their vehicle.
- Wear bright clothing, even during the day. At night, wear reflective clothes and use a flashlight.
- Watch for cars pulling in or out of driveways and backing up in parking lots.
- Don’t walk after using alcohol or drugs; they can impair your ability and judgment when walking just as they can do while driving.
What is a pedestrian?
A pedestrian is any person who is walking or on roller skates, a skateboard, hoverboard, electric scooter, in a wheelchair or any other moving object, or using a tricycle or any other device that’s not a regular bicycle.
Who’s liable in a New York pedestrian accident?
The purpose of the tort law system (which applies for most personal injuries) is to make a plaintiff whole again. Put simply, if you were injured, you need to prove that a person or entity was negligent, that their negligence caused you harm, and that the harm cost you money.
Everyone has a duty to the people around them — even those they’ve never met. If you’re a driver, you have a duty of care to anyone who shares the road, whether it’s other motorists, pedestrians, bicyclists, or domestic animals (pets). As a pedestrian, you also have a duty of care not to cause an accident with other motorists, bicyclists and pedestrians.
A driver can be negligent in any number of ways, but here are a few common examples where a negligent driver could cause injury to a pedestrian:
- Failing to stop at a traffic light or stop sign
- Failing to give a pedestrian enough room to enter or exit a parked car
- Failing to move over or slow down for a person in the break-down lane
- Texting and driving, or other distracted driving
- Driving under the influence of drugs and alcohol
Many people believe that a driver always must yield to a pedestrian, but a pedestrian also has a responsibility to follow the rules. New York is a comparative negligence state, which means an injured plaintiff can also be assigned a percentage of liability for the accident.
Here’s an example:
It’s a rainy day, and Peggy is juggling Daisy’s leash, an umbrella, and a bag of items she just purchased at the store.
Peggy is walking East on Main Street on the sidewalk. Driver Daniel is in his car, driving attentively and using windshield wipers in the rain. All of a sudden, Daisy spots a squirrel across the street and begins to dash for it. Peggy’s caught off guard by the sudden jerk of the leash and it comes loose from her hand. She drops her umbrella and grocery bag. She immediately reaches to catch the leash, but she stumbles into the road after Daisy and into the path of Daniel’s car.
At that moment, Daniel has become bored with the sound of the windshield wipers, and he’s fiddling with his radio to find a station.
He takes his eyes off the road for an instant to look at the radio, and it’s at that very moment that Peggy stumbles. Daniel hits Peggy and she is seriously injured.
Peggy makes a claim against Daniel’s insurance policy, but the insurance company says it was her fault because she stumbled in front of Daniel’s car. Peggy argues that if Daniel hadn’t taken his eyes off the road to adjust the radio, he would have seen her fall and could have braked sooner.
The case ends up in court, where it’s determined that Daniel is 75% liable and Peggy is 25% liable.
Peggy’s damages for medical treatment and lost wages add up to $1,000,000. Since she is 25% liable, her award is reduced by 25%, or $250,000. Peggy ultimately recovers $750,000 from the accident.
Pedestrian slip-and-fall accidents
A pedestrian can be injured in other ways than being hit by a car. If you were injured because of a cracked sidewalk, broken steps, icy surface, or other hazardous condition, you might have a premises liability claim.
A premises liability claim in New York relies on these elements:
- The owner was in control of the property.
- The owner was negligent in maintaining the property in a way that was reasonably free of hazards.
- The pedestrian was harmed as a result of the owner’s negligence.
If you fell on private property, you’d need to find out who is the owner and who was responsible for maintenance.
If you fell on a town, city, or county sidewalk (or in a parking lot or any other public place), consult a personal injury lawyer. Rules for claims against a government agency are different from those for claims against a private person or agency.
Damages in a pedestrian injury accident
If you were injured by a vehicle as a pedestrian, you can make a claim against the driver’s automotive insurance policy just as you would if you were both driving cars.
Your own health insurance might cover medical treatments for injuries suffered in a pedestrian accident, but it won’t cover expenses like lost wages or emotional distress (i.e. pain and suffering, loss of consortium, and related losses).
The driver is required to file a report to the DMV in New York if there’s any fatality, injury, or property damage that exceeds $1,000. If there’s a police report at the scene, it’s automatically filed to the DMV.
The damages you can recover include compensation for the following expenses:
- Medical treatment, including doctor and hospital visits, prescription medication, surgeries and follow-up treatment, diagnostics like MRIs or X-rays, etc.
- Ongoing treatments, like physical and occupational therapy
- Adaptive devices like prosthetics, wheelchair, walker, etc.
- Lost wages, past and future, for time off from work
- Property loss or damage, such as for your broken phone
- Emotional distress, including loss of consortium and pain and suffering
What to do after a New York pedestrian accident
If you’re injured by a car as a pedestrian, then you should take similar steps as you would following a car-to-car collision.
1. Seek medical attention.
If you’re badly hurt and can’t move, walk, are bleeding, or feel like you’ve sustained a head injury or broken bones, call an ambulance (or ask someone else to call one for you).
Even if you think your injuries are minor, it’s still a good idea to be checked out by a first responder. Any collision with an injury warrants a 911 call. An emergency medical technician (EMT) who responds to the scene can advise whether you should go to a hospital. If your injuries can be treated at the scene, it’s important that the EMT or police provide you with documentation of the treatment you received.
Some injuries might not appear immediately — and if you have a concussion or other brain trauma, you might not be able to self-diagnose that. In addition, even a minor accident can leave the victim feeling shaken or in shock. You might not be able to make the best judgments at the moment. Shock can also affect the body’s ability to experience pain. There could be parts of your body that were seriously injured, but your brain might not be registering pain.
Aside from ensuring your health and physical condition, a medical examination is crucial if you’re going to need to pursue a personal injury claim. If you do have symptoms or injuries that appear days or weeks after a pedestrian accident, it’s much harder (or impossible) to prove that they’re the result of the accident. If you can’t prove that they were caused by the accident, you can’t recover damages for related treatment or other expenses.
2. Gather evidence at the scene.
This step should be taken only if you’re physically capable of doing so. Your first priority is getting the medical assistance you need. But if you’re able to gather information safely and without further injuring yourself, it can help your claim or personal injury lawsuit later.
You’ll want to get the following information:
- Driver’s name, address, and phone number
- Their driver’s license number
- Make, model, color, license plate, and registration number of the vehicle
- Detailed notes about the condition of the road, traffic signals, signs, weather, and other aspects of the scene
- Photos of any damage to the car
- Photos of the intersection or area, including if there’s a crosswalk, sidewalk, or other pedestrian right-of-way
You don’t have to discuss with the driver who was at fault or how the accident happened — in fact, it’s best if you don’t say anything at all. The police report will include some of that information, but a detailed account of the accident is best saved for when you consult with your personal injury lawyer.
3. Look for witnesses.
Witnesses might be hard to find in some cases. Any pedestrian or driver who observed the collision can be a witness. But if you’re near homes or businesses, there might be people who you can’t immediately see who also might have observed something about the incident that becomes important as part of your claim. It’s worth approaching nearby homes or businesses to ask whether anyone witnessed the accident.
With the prevalence of surveillance cameras today, it’s also worth asking if any residence or business nearby might have captured video footage of the accident. Ask this question as soon as possible after the accident because most surveillance video is only preserved for a short time before it’s erased forever.
If you can locate witnesses, obtain their names, addresses, email, and phone number. It’s important that your lawyer follow up with witnesses as soon as possible before memory fades or they become unavailable.
4. Seek the assistance of a personal injury lawyer
Once your medical condition is stable, it’s time to begin to think about how you’re going to pursue a claim.
In New York, the statute of limitations for most personal injury cases is 3 years.
That means you can file a claim any time within 3 years of the date of the accident or injury. However, sooner is better. For one thing, if you’re already paying medical bills or have lost income, the sooner the claim can be settled, the sooner you can receive money to cover those expenses.
Second, memories fade over time. Even your own memory might play tricks on you over the course of weeks, months, or years. And for a witness, memory can fade even faster because they’re not directly involved. It’s important to begin a claim as soon as you can in order to have the most accurate and provable evidence.
If you’ve made a claim against the driver’s insurance company and the settlement amount offered to you isn’t what you expected or believe you deserve, then it’s time to find a personal injury lawyer near you. Especially if your injuries are severe or will require ongoing treatment, a lawyer can ensure that you’re receiving the compensation you need to cover your costs.
The Enjuris lawyer directory is a no-cost resource for finding a New York personal injury lawyer who’s experienced and compassionate. A lawyer has access to financial and medical experts who will assess exactly what your current and future costs will be and work toward reaching the financial compensation you deserve.