If you live in the Bay Area, you probably commute by foot at least some of the time. Established public transportation systems like BART, Muni, Caltrain, SamTrans, and AC Transit make it easy for people to get around without a vehicle — so easy that many people who live in cities along the peninsula and in the East Bay do not own a car.
Unfortunately for pedestrians, walking can be risky and hundreds of pedestrians are injured or killed in Northern California each year. Although annual pedestrian fatalities are declining slightly in California, pedestrian fatalities in for people age 65 and older are on the rise.
If you were seriously injured in a pedestrian accident as a result of a driver’s negligence, you should understand your legal rights. In this article, we provide an introduction to pedestrian accident law in California.
We first explain the various options injured pedestrians may have for financial compensation after an accident. Then, we discuss how a pedestrian establishes negligence in a personal injury lawsuit, the timeline for such a lawsuit, and how an injured pedestrian can manage his or her medical bills during as a lawsuit proceeds in court.
Finally, we talk about the ways in which a personal injury lawyer can help you through this process.
Do I Have a Right to Compensation for a Pedestrian Accident?
If you were injured in a pedestrian accident as a result of a driver’s careless or intentional conduct, you may have a right to be compensated for your injuries and other losses, such as wages you could not earn while recovering from your injuries. There are two options after a pedestrian accident: filing a claim with the driver’s insurance company or filing a personal injury lawsuit in civil court.
If the driver was insured at the time of the accident, you can file a claim with the driver’s insurance company. The claim negotiation and settlement process can be time consuming and difficult to navigate without assistance from a lawyer. The claims adjuster from the insurance company will try to settle your claim for as little as possible and will require you to give up your rights to sue the driver in court in exchange for paying your claim.
Because pedestrian accidents can cause such devastating injuries, filing a personal injury lawsuit is often the only way to get the compensation you deserve.
What Are My Legal Options After a Pedestrian Accident?
There are two main legal theories that can serve as the basis of a pedestrian accident lawsuit in California: negligence and battery. Because most pedestrian accidents are accidents caused by careless driving rather than an intentional bad act, we’ll focus on negligence.
The definition of negligence is the failure to act with the level of care that a reasonable person would have exercised under the same or similar circumstances. There are five elements of a standard negligence claim. In order to win a pedestrian accident lawsuit based on negligence, you’ll need to prove the existence of the following elements by a preponderance of the evidence.
- Duty: The defendant must be obligated by law to act in a certain way toward the injured pedestrian. There is almost always a duty for a driver to exercise reasonable care toward pedestrians on the roadway.
- Breach of duty: The defendant must have breached that duty, meaning that he or she failed to act with the required level of care. If a driver breaks a traffic law and strikes a pedestrian, the court may automatically assume that the driver has breached a duty under a legal theory called negligence per se.
- Cause-in-fact: The injured pedestrian must prove that the driver actually caused his or her injury. This is sometimes called “but-for” causation because the plaintiff must show that but for the defendant’s actions, the plaintiff’s injuries would not have occurred.
- Proximate cause: The driver in a pedestrian accident case will only be responsible (or “liable”) for the harms that were foreseeable as a result of his or her actions. In most pedestrian accident cases in California, serious injuries are considered to be foreseeable consequences of negligent driving.
- Damages: The injured pedestrian must show that the accident caused him or her to suffer legally recognized harm, typically in the form of bodily injury, financial losses, or damage to his or her property.
If an injured pedestrian can establish each of these elements by a preponderance of the evidence (meaning that more than 50% of the evidence favors his or her case), he or she will win the lawsuit and will be awarded money by the court.
What is the Timeline for a Pedestrian Accident Lawsuit?
If you are considering filing a pedestrian accident lawsuit, you probably want to know how long your case will take. In California, you typically have two years from the date of your accident to file a lawsuit under a procedural rule known as a “statute of limitations.” Once you file your lawsuit, the amount of time it will take to resolve depends on a number of factors, including the severity of your injuries and the complexity of the legal issues involved in your case.
If you were seriously injured, the defendant (or his or her insurance company) may be eager to settle the case before it goes to trial because they anticipate that the amount of damages that you’re awarded by a judge or jury will be very high. If you receive a settlement offer before trial, your lawyer will help you determine whether you are being offered a fair amount of money for your injuries and other losses. If your pedestrian accident case goes to trial, this process can take several months or even years. Your lawyer can help you better understand how long your pedestrian accident lawsuit will take once he or she begins working on your case.
How Can I Manage My Medical Bills After a Pedestrian Accident?
A pedestrian accident may cause serious injuries that require immediate medical treatment. The cost of medical treatment can be financially overwhelming, even for those with health insurance. You should evaluate all of your options for managing your medical expenses after a pedestrian accident. Even though the driver who hit you is legally responsible for these expenses if they were at fault in the accident, you may need to pay for your own medical costs until your insurance claim or personal injury lawsuit is resolved.
Here are a few of the options you have to manage your medical expenses.
- Insurance Coverage. You may have optional medical payments coverage through your auto insurance policy. If you have coverage under this type of policy, your medical bills may be covered if you were injured as a pedestrian by a vehicle. The driver’s insurance policy may cover your medical bills, but you should consult with a pedestrian accident lawyer before accepting any type of settlement from the at-fault driver’s insurance company.
- Health Insurance. Your health insurance coverage will typically cover a portion of your medical treatment. You may be required to pay the remainder out-of-pocket. You should consult with a lawyer about how any proceeds from a personal injury lawsuit will be allocated to your insurance provider.
- Medical Liens. With this option, your attorney can help you get medical treatment from doctors and healthcare facilities that will treat you on a “lien” basis. This means that you pay nothing out of pocket in exchange for agreeing to pay the doctor or facility back once your case settles.
- Out of Pocket. If you pay for your medical treatment and associated expenses out-of-pocket, you will be reimbursed for these costs if your personal injury lawsuit or insurance claim is successful.
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How Can a Personal Injury Lawyer Help?
Working with a reputable personal injury lawyer offers you the best chances at succeeding in your pedestrian accident claim or lawsuit. An attorney will gather the evidence to present the best case possible and will relieve the stress of navigating the insurance claim negotiation and settlement process or legal system. You should hire an attorney you trust who has succeeded in obtaining large settlements and verdicts on behalf of their pedestrian accident clients.
Case ResultOn a sunny summer day, a young mother of two was walking back to her car when she was struck by a vehicle while in a crosswalk. The impact first knocked her down, and then the car continued to move and rolled over her leg.The victim was lucky to not have any bones broken, but was in excruciating pain for a long time and had to continue to seek treatment for months in order to make sure everything was healing properly. This accident resulted in permanent scarring on a large part of her leg, as well as a continuous feeling of weakness when putting weight to the affected side.For her suffering both physically and emotionally, GJEL was able to acquire a $200,000 settlement.