Can I sue? The detective stated that the driver did not see him and could not stop, and my son states that he did not see the car. How do I determine if teh driver was at fault?
I agree with the first two comments. You need to determine whether the driver was negligent when he hit your son. To determine this, you will need to know what the driver was doing at the time of and just before the accident: Where was he looking? Did he see that the bus had stopped? What was he doing inside the car (for example, was he on a phone, distracted, etc.)? How fast was he traveling? Answers to these kinds of questions will help determine whether he was negligent, or careless, in causing the accident. If he was negligent, then your son can pursue a claim or lawsuit against him.
Some of the information you will need may be in the accident report.
I recommend you speak to an attorney to help you evaluate the facts of the accident and determine what additional information may be needed.
I hope your son is okay. First, you'll need to look at the police report and see where in the street your son was crossing. If he was crossing at a cross walk this will have an impact on whether the car was at fault. In my experience with "dart out" cases insurance companies want to put blame on the child if there were not independent witnesses to the incident. If this happened recently I'd recommend talking with an attorney who can send investigators out to get witness statements and, if need be, hire an expert to see if the car was driving too fast for conditions.
Attorney Nuckles addresses the different ways the driver could have been negligent well. The driver could have been distracted (failure to keep a proper lookout), may have been driving too fast according to the posted speed limit, may have been driving inappropriately fast for conditions, may have been driving inappropriately fast considering where the accident took place (his vision was obstructed by the bus and there may have been a marked or implied crosswalk where your son was struck). It is also important to keep in mind your son may be a sympathetic character in the eyes of any jury as compared with the driver. I suggest seeing one or more personal injury attorneys to discuss the case as soon as you can. Giving Attorney Nuckles a chance to meet with you and evaluate the case would be smart and fair given that she is in your area, is highly rated by avvo, knows a little about the case and has already helped with a knowledgable response.
The question is whether the driver was negligent. Negligence is defined as breach of the duty of ordinary care. Most jurisdictions have statutes or ordinances requiring drivers to pay attention to what is in front of them and avoid hitting anything. Violation of such a statute or ordinance may be good evidence of negligence.
What you should probably do is call an attorney. An attorney can probably obtain a good settlement for you or, if necessary, litigate the matter.
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