Car Accidents With Pedestrians

Here's what to do, and how to determine fault, if you hit a pedestrian.

According to the National Highway Traffic Safety Administration, fatal traffic accidents involving pedestrians are on the rise, with 6,283 pedestrian deaths in 2018—a 3 percent increase from 2017. (Note that these numbers don't include traffic accidents involving bicycles or electric scooters.)

When a vehicle hits a pedestrian at higher speeds, it's no surprise that serious injuries and fatalities can result. But a driver can seriously injure a pedestrian while driving at just 10 miles per hour.

As a driver, it's important to know what to do immediately after an accident with a pedestrian. Drivers should also learn the basic rules of fault, how injuries and damages will be compensated, and most importantly, how to avoid these kinds of accidents in the first place.

What to Do Immediately After the Accident

It's natural to feel upset after any kind of accident. Take a deep breath and focus on the following:

Safety comes first. First, get any injured people to a place of safety. Do not attempt to administer medical treatment beyond what is required of you in an emergency, such as CPR.

Get medical and legal help. Next, contact medical care providers, police, and auto insurance providers. When the police arrive, give truthful statements to them about how the accident took place.

Exchange contact information, but not much more. Exchange information with everyone involved in the accident. If the pedestrian is not incapacitated, exchange names, phone numbers, email addresses, and insurance information. Avoid talking extensively with the pedestrian or their friends or family members. Admitting fault, or making statements such as "I feel so guilty," could expose you to a personal injury lawsuit, so be careful of what you say. You should also avoid speaking directly to the pedestrian's insurance company or attorney.

If you are facing possible criminal charges for the accident for a violation such as driving under the influence, you might want to contact a criminal defense attorney soon after the accident.

Who Is at Fault?

When a driver hits a pedestrian, often the biggest question is: Whose fault was it? Generally, fault is determined by the law of negligence. In oversimplified terms, a person who fails to exercise reasonable care under the circumstances may be considered "negligent."

However, both the driver and the pedestrian can be at fault in the same accident scenario. For example, the pedestrian may be crossing the street illegally while the driver is traveling in excess of the posted speed limit. This scenario is treated differently in different states.

Some states, such as Maryland and Virginia, follow what's called a "pure contributory negligence" rule. This means that if the pedestrian contributed in the slightest bit to the accident, then he or she cannot recover damages from the driver and his auto insurance company in court.

Other states follow a "comparative fault" rule. This means that a pedestrian can recover some damages even if he or she was partly at fault. Learn more about car accidents and contributory and comparative negligence.)

Police Reports and Insurance Company Findings

The police will take statements from the driver, pedestrian, and witnesses to determine who was at fault. They may make a preliminary finding on the spot or conduct a detailed investigation.

The police report from the accident could indicate which party the law enforcement officer saw as being at fault. Auto insurance companies, however, may dispute any such finding. Insurance companies typically send an adjuster to the scene of the accident, or view the damage to persons and property soon after the accident has occurred. If you believe that your insurance company will unfairly assign you a greater percentage of fault, consider retaining a personal injury attorney who will fight for you.

Insurance Coverage for Pedestrian Accidents

Injured pedestrians are usually covered under their health and disability insurance policies, or worker's compensation coverage, if the accident occurs on the job. They may also be covered under one or more auto insurance policies.

Payment Under Auto Liability Insurance

An injured pedestrian can usually file a claim against the driver's or vehicle owner's auto liability insurance policy. Almost all states require that vehicle owners and drivers carry liability insurance to cover personal injuries to third parties and damage to third parties' property. Recoveries are dependent on who caused the accident and insurance policy details.

Payment Under No-Fault Coverage

A dozen or so "no-fault" states require insurance companies to pay for the medical expenses and lost wages of their own policyholders, regardless of who is at fault. This is also known as personal injury protection (PIP).

When it comes to coverage for injuries to pedestrians in no-fault states, laws between the states vary. In some states, the driver's insurance company pays the amount of the pedestrian's medical expenses up to the PIP limit, even if the accident is the pedestrian's fault. There are exceptions to this payment scheme. For example, in New Jersey, if a pedestrian is not insured, she or he may be paid out of a special state-mandated fund called the Unsatisfied Claim and Judgment Fund.

To learn more about dealing with insurance company, settling claims, and handling your own car accident case, get How to Win Your Personal Injury Claim, by Joseph L. Matthews (Nolo).

Avoiding Pedestrian Accidents

The best way to avoid pedestrian accidents is to understand that "defensive driving" means being aware of people who walk, use a bicycle, operate a wheelchair, rollerblade, rollerskate, ride an electric scooter, and play in the road. Pay particular attention to young children and older adults, who may be less aware of drivers on the road, more likely to stray outside crosswalks, and not pay attention to traffic signals.

Seek a Lawyer's Advice

State laws vary widely when it comes to car insurance schemes, and each scheme has limitations and exclusions. In addition, recovery may depend on the particular insurance policies involved, as well as judicial decisions in that state.

In order to sort this all out, injured pedestrians may want to seek advice from a professional, such as the pedestrian's own insurer or a personal injury attorney. Pedestrians might want to ask an attorney which auto insurer they should approach first, and from which insurer they might be able to receive additional coverage.

Special thanks to David Snyder, vice president and assistant general counsel of the American Insurance Association.

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