We’ve all done it before – especially anyone who frequents the Justice Center – crossing the street outside the crosswalk or in the crosswalk but when there is the “do not walk” signal. Through my unofficial and unverified observations, 99% of the time it is done without incident. However, what happens during the other 1% of the time? Can the individual who was struck and injured recover for their loss? My answer: it depends.
In most cases, your personal injury claim will be based upon a theory of negligence. In order to establish a claim of negligence, you must show
- the existence of a duty;
- a breach of a duty;
- an injury; and
- that your injury was caused by the breach of duty.
In my pedestrian crossing outside the crosswalk scenario, the law requires the pedestrian to yield the right-of-way to all vehicles in the roadway. It logically follows that the law recognizes that a motor vehicle has the right to proceed uninterruptedly in a lawful manner in the direction in which it is traveling in preference to any vehicle or pedestrian approaching from a different direction crossing its path; in other words, the motor vehicle has the right-of-way.
With this in mind, the law does not require drivers to look for pedestrians or other vehicles violating their right-of-way (i.e. no duty). This, however, is not absolute. If the driver has reason to suspect a pedestrian would violate the right-of-way – i.e. driving around the Justice Center or through any college campus – there is a duty to look out. Moreover, if the driver actually observes someone violating their right-of-way or otherwise discovers a dangerous situation, they must exercise due care to avoid colliding with a pedestrian or vehicle.
As you can imagine, whether or not the operator of a motor vehicle owed a duty in the first place and, if so, breached it, is fact-specific and unique to each case.
Moreover, this analysis in not limited to just pedestrians crossing outside the crosswalk. It would equally apply to any cyclist using “stop as yield” or “red as a stop;” a runner going against the flow of traffic; another driver running a red light at an intersection; or an accident where someone was pulling out of their driveway.
If you have been injured in a similar situation, don’t let the insurance companies tell you can’t recover because it was your fault. Instead, contact Scott for a no cost, no obligation consultation and case evaluation.