If you were hit by a car while walking or jogging, the last thing on your mind after a serious pedestrian accident is having to defend yourself from blame. Don’t think that just because you were a pedestrian that the driver’s insurance company won’t try to blame you for the accident. Insurance companies are required to investigate all claims and in doing so, they are looking for facts which could minimize the responsibility of their insured drivers. If this sounds harsh, remember, insurance companies are for-profit businesses. When faced with pedestrian accidents, the insurance adjuster will want to ask you questions in order to search for clues that you may have been partially to blame for your own injuries.
It is always best to speak with a lawyer before speaking to the driver’s insurance company. If you’ve spoken to them already and feel that they are trying to blame you, please do not feel bad. You can (and should) feel angry, but let us help you to put the situation into perspective and provide assistance.
Aren’t Drivers Always at Fault When they Hit a Pedestrian?
While many people think that a vehicle’s driver is automatically at fault when they hit someone, that is not always the case under Illinois law. It is true that drivers on the roadway must drive in such a way as to prevent injuring others and must follow all traffic laws. In Illinois, drivers specifically have to yield to pedestrians at marked crosswalks. Even if someone is not in a crosswalk, this does not minimize a driver’s duty to drive with caution to avoid striking people. This is especially true in school zones, construction zones, coming over hills or driving any place where their view could be obstructed. Common causes of pedestrian accidents are distracted drivers, speeding, drunk driving, turning a corner too fast and poor visibility. The fact that the law places a high standard of care on anyone operating a motor vehicle does not, however, mean that pedestrians will always be found blameless. Pedestrians are required to pay attention to their own surroundings and not place themselves in harm’s way.
How Can Pedestrians be Partially at Fault for an Accident
Regardless of a driver’s fault, some measure of blame is occasionally placed on pedestrians. Pedestrians can legally be found to be partially at fault in Illinois.
Common defenses to hitting a walker or jogger include:
- The pedestrian couldn’t be seen due to dark clothing at night, making them virtually invisible
- The pedestrian, often a child, ran into the roadway
- The pedestrian was someplace that they should not have been, for example walking on the shoulder dangerously close to traffic, changing a tire in the middle of the roadway, attempting to run across the street in moving traffic, etc.
- The pedestrian approached the car
- The pedestrian was distracted, perhaps looking down at a cell phone while walking
- The pedestrian was not actually struck at all, but was injured in a different manner
The Concept of Contributory Negligence and What it Means for Pedestrian Accidents
Fault in any kind of accident is not always clear cut. Most pedestrians can prove fault on the part of the driver who struck them due to the great level of care that all drivers must use. However, the pedestrian’s financial recovery could be reduced if some portion of the blame rests with them. In Illinois, the concept of contributory negligence comes into play in situations where a pedestrian is partly responsible for their own injuries. Contributory negligence means that while the driver was at fault, the walker or jogger shares some blame for how the accident happened. A percentage of blame may be placed on the pedestrian and their compensation is adjusted downwards to account for this. For example, if a pedestrian darts across the street to try to ‘make it’ before the crosswalk light changes, he or she might be partially responsible for getting hurt. It could be argued that the pedestrian in this case attempted to cross the street when it would have been safer to wait. If it is decided that the pedestrian is 20% to blame, their recovery would be reduced. Let’s say that the value of their claim was $50,000.00, as fair compensation for their medical bills, pain, suffering, medications and unpaid time from work. However, since they were 20% at fault, the $50,000.00 award would be reduced to $40,000.00 to account for this.
Determining fault after being hit by a car can also be difficult to determine based on how quickly most pedestrian accidents happen. Pedestrian accidents are usually described as taking place in a split second, before either the driver or the pedestrian has time to comprehend what is about to happen. One moment everyone is going about their business and the next moment, a pedestrian is laying in the roadway, or worse. Fear, panic and other strong emotions often overwhelm both the driver and the person who was hit. This is why it is important to write down everything you remember about how the accident happened and anything leading up to it, as soon as you are able to. If rendered unconscious, you may try to recall what happened immediately before you were hit. Witness names and phone numbers should be taken down by anyone who is available to gather this information, since they might have seen what happened or add corroboration to facts presented later.
Pedestrian Accidents are occurring with greater frequency
Unfortunately, according to the Governor’s Highway Safety Administration, pedestrian accidents are up by more than 50% in the United States over the past ten years. This is not surprising given how often people are still texting while driving. While not surprising, these statistics are nonetheless alarming. Fatalities are more common in pedestrian accidents than in car v. car accidents, because of how vulnerable they are without the shield offered by sitting inside a vehicle.
What to do After Being Hit by a Car or other Vehicle
Regardless of fault, follow these steps if you are hit by a car, or have someone else help you with this in the moment, if they are able to:
- Seek medical attention. Making sure that you are okay is the most important thing in the aftermath of an accident. Depending on severity, an ambulance may need to be called or basic first aid administered at the scene of your accident. Even if the incident was relatively minor, it is often still a good idea to be checked out at the emergency room as soon as you are able to be seen. Injuries may take a few hours or days to develop and given how unprotected pedestrians are compared to the occupants of a car, it is wise to be checked by a doctor. This is especially important if you hit your head.
- Take pictures. Take pictures of the scene of the accident, even if you have to go back another day to get pictures of the layout. This will help others understand the facts better. Also take pictures of yourself if you have any noticeable injuries such as bruising or bleeding. If you are lucky, a witness may have taken pictures of the car after it hit you.
- File a Police Report.
- Exchange information with the other driver. If a hit and run, find out if anyone took down the license plate or was able to identify anything about the car or its driver.
- Gather names and phone numbers of witnesses.
- Report the accident to your own insurance company. While it is true that you were not driving at the time, your own auto policy may offer certain protections to you such as underinsured coverage, if you need it. Oftentimes Illinois drivers do not carry enough insurance to compensate you for your injuries if you are hit by a car, and your own policy may be able to pick up the difference. The same holds true if you were hit by someone without car insurance.
- Do not speak to the driver’s insurance company without first talking to an attorney. Note that they will certainly want to talk to you as soon as possible before you have time to consult with a lawyer. Remember, one of the insurance adjuster’s goals in speaking to you is to try and pin the blame on you or at the very least make it seem like your injuries were no big deal.
While it might be tempting to talk to the driver’s insurance adjuster if you know that you were in no way responsible for the accident, remember that you are dealing with highly trained individuals. You will not lose any rights by not immediately speaking to an insurance adjuster for the driver. If you have already spoken with the insurance adjuster, don’t worry about it too much, we can still help. Consult with a lawyer so that you have someone on your side to answer your questions. If you were hit by a car, or your child or other family member was struck, I would be happy to speak with you to answer any questions you may have. Please call Carol Cadiz at 630 254-6552.