Perhaps the first thing to know about pedestrian accidents is that they are not “accidents” at all. These incidents may have been unintentional, but they were not inevitable and unavoidable. People accidentally spill milk and lose their car keys. They do not accidentally cause vehicle collisions or run over pedestrians. 

Negligence law is built on the simple principle that while we all make mistakes, we must all accept the consequences of those mistakes. In this context, these consequences usually include money damages.

The second thing to know is probably the relationship between speed and pedestrian injuries. Excessive velocity is a factor in many fatal car crashes. This factor looms even larger in pedestrian-vehicle collisions. If the tortfeasor (negligent driver) is travelling less than 30 mph, the pedestrian fatality rate is under 10 percent. But if the tortfeasor’s speed exceeds 40 mph, the pedestrian death rate skyrockets to 90 percent.

Very few of these incidents occur inside marked crosswalks or in traffic-controlled intersections. Most of these incidents occur on stretches of semi-rural roads. At these locations, motorists are almost always travelling faster than 40 mph. And, they are very rarely on the lookout for pedestrians.

What Causes Pedestrian Crashes?

As mentioned, driver inattention is one of the leading causes of pedestrian accidents. At marked intersections, especially those with on-demand flashing crosswalks and other such items, most drivers are conscious of pedestrians. But that’s not true on open stretches of road.

Furthermore, many people drive large pickup trucks and SUVs. Many drivers have a hard time seeing around these vehicles, especially when they look toward the edge of the road. However, this lack of visibility is not an excuse for negligence. In fact, the opposite is true. This difficulty increases the duty of care and makes it easier to lodge a successful claim for damages.

Driver impairment also causes a significant number of these instances. According to the National Highway Traffic Safety Administration, there are five kinds of driving impairment:

  • Alcohol,
  • Drugs,
  • Fatigue,
  • Medical condition, and
  • Distraction.

Note that in most of these impairment cases, tortfeasors know they are unfit to drive, yet they do so anyway. 

Your Claim for Damages

Driver inattention situations usually involve ordinary negligence claims. In a number of states, pedestrians always have the right-of-way, whether they are in marked crosswalks or not. But in Texas, pedestrians only have the right-of way if they cross with the green light, or with a “walk” signal, inside a marked or virtual crosswalk.

If the driver looked away for a moment and hit a pedestrian, that may not be negligence. But if the driver’s inattention constituted a lack of ordinary care, liability probably attaches. 

Most driver impairment matters, on the other hand, usually involve the negligence per se doctrine. In these cases, victim/plaintiffs do not have to prove a lack of ordinary care. Tortfeasors are generally liable for damages as a matter of law if:

  • They violate a safety law, and
  • That violation substantially caused the victim/plaintiff’s injury.

Negligence per se may apply in some inattention claims as well, if the tortfeasor was travelling so fast that the speed caused the crash, and not the inattention.

Insurance Company Defenses

Distracted drivers cause a number of car crashes, and distracted walking is a problem as well. If the victim stepped into traffic without looking both ways, the contributory negligence doctrine may apply.

This legal loophole may reduce the amount of compensation the victim/plaintiff receives. If both the victim and tortfeasor were partially at fault for the crash, the Harris County jury must divide fault between them on a percentage basis.

Texas is a modified comparative fault state with a 51 percent bar. So, even if the victim was 49 percent responsible for the crash, the tortfeasor must still pay a proportional share of damages.

Pedestrian injuries often involve the sudden emergency defense as well. If it applies, this doctrine completely excuses negligent conduct. This defense has two prongs:

  • Reasonable reaction to
  • A sudden emergency.

The first element is usually not a problem for insurance company lawyers. Most tortfeasors pull over when they hit pedestrians. That’s a reasonable reaction.

The second prong, however, is a different story. In this context, “sudden emergency” has a very narrow meaning. This phrase refers to hood fly-ups, tire blowouts, and other completely unexpected situations. A jaywalking pedestrian is more like a stalled car or a construction zone. These things, while unusual, are not completely unexpected situations. Therefore, the sudden emergency defense arguably does not apply in pedestrian injury claims.

Contact an Experienced Houston Personal Injury Attorney

Pedestrian victims often sustain serious injuries in vehicle collisions. For a free consultation with one of our dedicated attorneys, contact Simmons & Fletcher, P.C. You have a limited amount of time to act.

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Sharon Simmons-Cantrell

Sharon Simmons-Cantrell currently runs the pre-litigation department at Simmons and Fletcher, P.C. She earned her law degree at the University of Houston Law Center in 1991. From meeting with victims, to negotiating with insurance adjusters, Sharon understands every step of the legal process and always goes the extra mile to provide her clients with comprehensive legal representation.