Cars and trucks strike and injure thousands of pedestrians every year. Some of the injuries are relatively minor but a significant number are catastrophic or even fatal. Within the California Civil Court system the cases are broken down as follows.
The Liability or Fault of the motorist: If the pedestrian was walking in an appropriate location, a sidewalk, parking lot or cross-walk the fault of the motorist may be clear. But what happens if things are not so clear? Maybe the pedestrian is out of the cross-walk. California case law says that cross-walks offer a zone of protection. A few feet out of a cross-walk does not be important but what if the driver is simply jay walking mid-block? What if it is at night or the pedestrian is running or intoxicated? These questions raise the issue of comparative fault of the person walking and may lessen the driver’s duty because they could not have foreseen the pedestrian being in the roadway at the time or place of the loss. Comparative fault of the pedestrian can reduce the value of the claim in proportion to the degree of negligence of the pedestrian. If you are two feet outside the cross-walk the insurance adjuster may argue there is no liability or fault on their insured at all. While that is a ridiculous position, it is done all the time. An attorney with significant experience and the use of qualified, effective expert witnesses can turn an insurance carrier from refusing to pay to a successful settlement.
Causation: Sometimes causation in a pedestrian accident case can be fairly obvious. For example, a person probably didn’t enter the cross-walk with a broken leg. If a car hits him as he crosses the street that is probably the most likely cause of a freshly broken leg. Other injuries that make old injuries worse or “light up” previously pain free degenerative conditions will require a doctor’s testimony to help prove this portion. Sometimes a treating doctor might help but frequently an expert is required.
Damages: Damages are the measure what the claimant lost. Special damages are out of pocket expenses including medical bills even if paid by health insurance and lost earnings even if paid by sick-pay. Other special damages might include property damage to your car or personal items such as clothing. General Damages are less concrete and include pain and suffering, loss of consortium or familial relations and loss of quality of life. There is no table or grid to measure general damages and this must simply be argued. Effective counsel can explain this to the insurance carrier. If you are laid up for three months with a broken leg, your general damages have a higher value if you are very active. Here, juicy evidence includes computer generated gym sign-in sheets, witness statements from jogging buddies and photos or videos of you participating in your activity can all be very helpful to show loss of quality of life.
Given the many different factors that go into an injury of this type effective, experienced counsel is crucial. Give us a call. Talk to an attorney. The consultation is free and there is no commitment or hard sell.
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