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I jogged into crosswalk and was hit by a car

I jogged from the sidewalk into a crosswalk. A couple steps into the crosswalk, I was hit by a right-turning car. The driver’s insurance company is claiming since I was jogging, the accident was my fault. But I had a green light and the driver had a red. How was it my fault?

- C.J., California

Answer:

Being hit by a right-turning vehicle is one of the most common ways that pedestrians get hit, and one of the most common causes of the pedestrian accidents that we see at our firm.

If you had a green light, that means that the right-turning driver had a red light. A right-turning driver's attention is focused on the cars approaching from the driver's left. When there's a break in oncoming traffic, the driver begins to turn right, often never looking to the right to make sure a pedestrian or bicyclist is not coming off the sidewalk. The problem is that motorists are generally focused on avoiding other cars; they are not thinking about avoiding pedestrians or bicyclists.

Pedestrians, on the other hand, think that when they get the green "Walk" signal, cars will honor their right-of-way and they can safely enter the crosswalk. They have no idea how commonly right-turning drivers fail to look right before initiating their right turn. Pedestrians should anticipate the inattention of drivers. Pedestrians and bike riders would be wise to practice "defensive walking and biking:" they should make eye contact with a right–turning driver before stepping or riding from the sidewalk into the roadway.

Since you had the green light, you had the right-of-way. The motorist had a duty to stop at the red light and not begin his or her right turn until it was safe to do so. The driver violated California Vehicle Code Section 21950(a), which states:

"The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter."

The problem is that you were jogging, which gives the adjuster some wiggle room in terms of fault. The fact that you were jogging allows the insurance adjuster to argue that you violated Vehicle Code Section 21950(b), which states:

"This section does not relieve a pedestrian from the duty of using due care for his or her safety. No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard…." (Emphasis added.)

But then you, the pedestrian, can then point to subsections (c) and (d) to put fault back on the motorist:

(c) The driver of a vehicle approaching a pedestrian within any marked or unmarked crosswalk shall exercise all due care and shall reduce the speed of the vehicle or take any other action relating to the operation of the vehicle as necessary to safeguard the safety of the pedestrian.

(d) Subdivision (b) does not relieve a driver of a vehicle from the duty of exercising due care for the safety of any pedestrian within any marked crosswalk or within any unmarked crosswalk at an intersection.

At the end of the day, a jury could attribute some degree of fault to you (called "comparative negligence"). The allocation of any fault on you by the jury will turn on many factors, including:

  • How good a witness are you? Would a jury like you? Would a jury be sympathetic to your claim and want to award you money?
  • How likeable is the defendant driver?
  • How fast were you jogging? Did you stop at the corner before you jogged into the crosswalk? Before entering the crosswalk, did you look left? Did you see the car that hit you? Was it stopped? Did you make eye contact with the driver? Did you see the driver looking to the driver's left?
  • What time of day did the accident happen?
  • Did any obstruction impair or block the driver's view of you?
  • Were you wearing bright colored clothing?
  • Were you wearing headphones?
  • Was the driver late for a meeting, on a cell phone call, texting, talking to a passenger, or in some other way distracted?

Even if a jury were to put some fault on you, if your injuries are serious, as they often are when a pedestrian is hit by a car, the value of your claim could very well exceed the driver's policy limit. You should look into whether you have uninsured motorist coverage (which is the same as underinsured motorist coverage) on your own auto insurance policy, if you have one. The reason: if you are able to collect the driver's policy limit, you can then pursue an underinsured motorist claim under your own car insurance policy. Doing so will not increase your premiums or cause your policy not to be renewed.

The same applies to minors (anyone under 18 years old) and bicyclists. If a minor or bicyclist, or minor bicyclist, is hit be a car and the injury victim's claim is worth more than the driver's policy limit, then the injury victim can make an underinsured motorist claim under the minor's parents' underinsured motorist policy or the bicyclist's underinsured motorist policy.

Have I confused you enough? It can certainly be confusing to someone who is dealing with the aftermath of an accident. You are welcome to contact our firm for a free consultation. Rest assured that if you retain our firm, and it turns out that we collect nothing for you, you pay us nothing. We are only paid if we collect money for you. That is our No Fee Promise.



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