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.