I had an accident with a pedestrian in the middle of the road. Police arrived, there were 2 witnesses and everything was in my favor. Police report stated the pedestrian was in a location no pedestrian should be and he was no where near a cross walk, plus wearing dark clothing and he was found to be 100% at fault and me 0%. Now the pedestrian is trying to sue me for his injuries. What are the possibilities he could win in this suit? My insurance is aware and are with me all the way
I agree with my colleagues. The police report will not come in. Moreover, you have your witnesses and your story. However, one of the issues regarding this case may be that if the pedestrian damages are larger than your insurance coverage, your company may decide to tender the policy to avoid being exposed to larger liability, should a jury find you liable. The pedestrian may have a different story than yours at trial and it would be foolish to believe that your story could carry the day in a car v. pedestrian. There are always unexpected issues that are difficult to control at trial. In a settlement, you have 100 percent control of the outcome. Let your insurance company handle the claim. Best of luck.
As indicated by the previous response, your insurance company must defend you - this would include litigation/court costs and assigning their lawyer to represent you at their cost. You want to cooperate with your insurance company for purposes of defending the case. In most states, the police report itself is not allowed to be evidence in court. However, the witnesses listed on the police report can testify. You should review this with the lawyer hired by the insurance company to defend you.
I agree with most of what my colleagues have said previously, but I need to add a few things.
(1) California's laws are very protective of pedestrians. The fact that a person is jaywalking does not relieve the driver of the duty to act with due care, and that includes stopping for him or her if necessary. (2) I have encountered more than one accident where the police report was simply wrong in its finding of fault. (3) Marked crosswalks are not the only place where pedestrians may cross - there are unmarked crosswalks, and there are situations where you can cross between intersections. (4) Since California accident reports do not provide percentages, I assume the 100 percent figure you are quoting is one that was come up with by your own insurance company, and of course that is going to be somewhat self-serving, since the insurer won't want to pay the pedestrian anything, but it is good that you are thinking for yourself and acting in your own self interest - not that of the insurance company. If it gets to the point where the passenger shows that he has major injuries and an arguable claim that you are liable, it might be in your best interest for your insurance company representatives to pay up. If they don't, you might be able to demand that they pay for a separate lawyer to represent you alone, against both the pedestrian and them.
There's a lot of misinformation and misunderstandings out there about fault and how it's determined for a motor vehicle accident either car v. car or car v. person or whatever.
There's some generalities that usually hold true, with exceptions, such as the pedestrian has the right of way and the dude who does the rear-ending is the dude at fault... but fault is only determined in two arenas... the Court or an arbitration proceeding... that is it... the rest can be considered opinions... sometimes quite persuasive opinions, but opinions none the less. As for pedestrians, by the way they are not always in the right... sometimes their own carelessness puts them in harms way... and sometimes both the driver and the walker are part to blame in which case the blame and the liability gets apportioned accordingly.
Should one find himself or herself having to fight against an opinion of fault, he or she should use the insurance he or she has been paying handsomely for… as they will probably not agree… but sometimes one’s own insurance company is doing the accusing… in which case he or she may have to hire one of us personal injury attorney types to get the matter before a judge.
And, in conclusion, for those that read this far… Since many of us personal injury types offer free consultations and take personal injury cases on a contingent basis, there really is nothing to fear in calling us.
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
"When you need a lawyer, call the Doctor... Call Paul J. Molinaro, M.D., J.D... Call (888)MDJDLAW."
* This post and all others I make on Internet are for informational purposes only. None of the information or materials I post are legal advice. Nothing I post as comments, answers, or other communications should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. While I try to be accurate, I do not guarantee accuracy.
** Fransen & Molinaro, LLP practices in the areas of personal injury, medical malpractice, and real estate law.
Unfortunately, many investigating officers do not correctly apply the facts to the law. It is a HUGE misconception that a pedestrian must cross in a crosswalk. This is only required between two traffic signal controlled intersections. A lot more facts are needed here. But given the pedestrian had made it to the middle of the road and you hit them it will be highly likely you will have at least some comparable fault. Let your insurance company handle the matter - it is out of your hands now.
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