Pedestrian was hit by vehicle in residential neighborhood. Pedestrian did not use a crosswalk and the vehicle was driving the speed limit. Can the driver still be found at-fault?
California is a pure comparative fault state, so that means that fault or "liability" can be apportioned between more than one person for an incident causing damage. It sounds like the pedestrian has some facts working against him, but all of the facts and circumstances need to be considered. For instance, a motorist cannot observe a pedestrian in the roadway and not stop just because he/she is not in a crosswalk. He must take reasonable action to avoid a collision with the pedestrian. So its possible for the driver to be partially or even completely at fault in such a situation. More information would need to be known - as they say "the devil is in the details."
Drivers are required to use the highest degree of car while operating a vehicle. I am not familiar with CA law, but the other attorneys have indicated that since they are a pure comparative case, if you filed suit and it went to a jury the jury would then apportion fault and whatever damage you have would be reduced by your percentage of fault. You should get a CA attorney asap.
Im not familiar with California law, but in NY and NJ... absolutely. Also, based on the limited facts knowns, there may be some comparative negligence/fault on the pedestrian, but the person in a car never has the right to go through or hit a pedestrian. A jury could find it was an "accident" and no fault on the driver, but thats rare in my experience. Seek a local personal injury attorney who gives free consultations and get legal advice. Good luck.
No one should handle any claim (involving a motor vehicle accident with bodily injury) against any insurance company without a lawyer. Claims should be handled by a lawyer - one who will be able to understand and explain the physical damages and injuries from accident. The victim of a car accident really needs to worry about one thing - getting better. That means attending doctor's appointments, attending physical therapy (if appropriate), and taking his or her medication. All of the rest can be handled by a personal injury attorney. We earn our fees (contingent by the way) by taking on the stress and hassle of fighting for money - I dare say some of us actually enjoy the fight, but I realize that most people do not enjoy conflict.
As for getting recovery – even if the at fault drive did a hit and run – the attorney will be the one to know how to go after anyone and everyone plus their insurance companies who has even a hint of liability... while making absolutely sure not to cross the line into frivolous lawsuits or extortion, we will use all legal means to recover for our injured client(s). In a motor vehicle accident, most personal injuries immediately target the driver, the owner, and the employer of the driver as potential defendants. If the defendants want to argue among themselves, so be it, but if the accident is the fault of the driver, at least one of them will be found liable when the jury gives the verdict.
As for determining who is at fault - whether a car to car accident or car versus pedestrian, determining who is at fault or partially at fault in a motor vehicle accident can be easy (as in the rear-ender) or more commonly not so easy as it requires witness interviews, drivers' statements, accident scene photos and reports, police reports, etc. If a determination is made that a drive is not at fault, then there is no legal liability. In the case of disputes over how to interpret all of the evidence, a court will determine fault.
Paul J. Molinaro, M.D., J.D.
Attorney at Law, Physician, Broker
Fransen & Molinaro, LLP
980 Montecito Drive, Suite 206
Corona, CA 92879
www.fransenandmolinaro.com / www.888MDJDLAW.com
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Yes.You should obtain needed medical care and treatment immediately and follow the doctor's advice. Do not give any statement to the adverse party or insurance company nor grant them access to any medical records. Photograph the injuries and the damage done to any property. Contact a personal injury attorney in your area as soon as possible so that you can protect your rights. You may also find it helpful to review the Legal Guides I have published on Avvo.com dealing with many of the issues you are now facing. The Guides can be accessed through my profile page on Avvo.com.
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Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.
The answer to this question will depend on many facts that are unknown from your question. A good starting point is CVC 21950 which discusses the right of way at crosswalks. While you state that the pedestrian did not use a crosswalk, your other facts indicated that there was no crosswalk but that the pedestrian was at an intersection, and perhaps crossing within an unmarked crosswalk. Pedestrians must use care and cannot leave a curb and walk in front of a vehicle that is so close as to cause an immediate hazard. At the same time, drivers are also required to exercise due care. In California, comparative negligence is used and each individual in this situation can be assessed with a percentage of fault. Therefore, the pedestrian could be partially at fault but still recover from the driver. There also could be liability against other entities, such as a city if it knew a certain intersection was dangerous. You should consult with an attorney to discuss these specific facts as well as the statute of limitations, which differs if you are suing a governmental entity. Depending on the facts of this case, you should also refer to CVC 21954 which deals with pedestrians outside of crosswalks.
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