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Can a Pedestrian Win Damages if Partially at Fault for an Accident?

Posted by Lorna Orak | Jan 15, 2021 | 0 Comments

If a pedestrian is hit by a car, we might assume that the car's driver is the at-fault party. The driver may have been distracted or may have failed to follow speed restrictions or other traffic rules. Nevertheless, there are instances when a pedestrian's negligence can contribute to an accident. In such cases, each party's relative share of the fault may determine what damages are recoverable.

New York law requires pedestrians as well as motorists to exercise caution on the roads, including sidewalks and crosswalks. Pedestrians may be in disregard of their duty of care by such actions as:

  • Texting or talking on a cell phone and paying no attention to traffic
  • Crossing against a traffic light or failing to obey a stop sign
  • Jaywalking outside of a designated walkway or between parked cars
  • Walking while intoxicated or under the influence of drugs
  • Wearing dark clothing at night without reflective gear
  • Failing to prevent children from entering a street without supervision

So what happens when a pedestrian is the at-fault party, or at least shares in the fault?

By law, the first step in seeking damages is filing a no-fault insurance claim within 30 days after the accident. Since pedestrians are not insured, the claim is filed against the Personal Injury Protection (PIP) of the car driver's insurance policy. PIP pays the pedestrian's medical bills up to the policy's coverage limits, regardless of whether he or she was partly at fault.

For serious injuries that exceed available PIP coverage, a direct liability claim must be lodged against the car's driver. Here is where the pedestrian's fault is considered. New York is one of 13 states that operates under comparative negligence laws, meaning each party's recoverable damages are reduced by their proportionate share of fault for an accident. New York allows recovery of damages no matter the plaintiff's degree of culpability, unlike some states that require the plaintiff to be no more than 50 percent at fault. For example, if a person darts into traffic in front of a speeding car, he or she may be found 80 percent to blame but can still recover 20 percent of provable damages for injuries suffered.

An investigation by a pedestrian accident attorney may uncover a third party who shares in the fault. For example, if a car's brakes failed or it had a mechanical defect that caused it to suddenly veer onto the sidewalk, a defective product claim may be filed against a manufacturer or seller. If a traffic light was out of order or a road repair project created an impediment to safe street crossing, the government authority or contractor may share in the blame.

Orak & Associates, PC in Pearl River, New York will answer your questions about your right to recover damages for injuries suffered as a pedestrian in a Rockland County or New York City accident. Call us at 917-216-8819 or contact us online to arrange a free consultation.

About the Author

Lorna Orak

Admission Details 2014, New York Law School Attended Florida Coastal School of Law, Class of 2013, J.D.

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Contact established New York personal injury attorneys for a free consultation

The personal injury law firm of Orak & Associates, PC in Pearl River, New York is here to help. Call us today at 917-216-8819 or contact us online to schedule a free consultation.

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