Posted By Alan Sackrin on July 28, 2016
In Florida, car accidents where someone on foot is hit by a moving vehicle (i.e. a “pedestrian accident”) usually come with an assumption that the driver of the motor vehicle is to blame for the accident. After all, he or she was driving a heavy machine (a dangerous instrumentality), while the accident victim was there on the street or sidewalk, or in the parking lot, with no protection from harm as they were walking or jogging and going about their day.
Insurance companies recognize that Florida as well as other states have a lot of case law as well as municipal and state traffic laws that suggest that the driver is presumed to be at fault in a pedestrian accident. And often this is true — the driver will be to blame for hitting the person on foot.
However, this is not always true. The driver isn’t always to blame; sometimes, that blame lies with the pedestrian or a third party. As a victim, you cannot assume that the insurance company will not blame you for the accident as it evaluates your claim.
Are Most Pedestrian Accidents Considered Preventable by Insurers?
The National Highway Traffic and Safety Administration defines a “pedestrian accident” as “…any person on foot, walking, running, jogging, hiking, sitting, or lying down who is involved in a motor vehicle traffic crash.”
National General (along with other insurers) defines a “preventable accident” as “one in which the driver failed to exercise every reasonable precaution to prevent the accident.”
Some insurance adjusters will process a pedestrian accident claim with the bias that the accident was preventable. Key here is the driver and whether or not he or she was driving as a reasonable driver at the time of the accident.
Was The Driver Acting in a Reasonable Manner?
Insurers evaluate the driver involved in the pedestrian accident to see if he or she was operating the motor vehicle in a defensive manner.
If the driver was not driving defensively, then the driver may be considered to not have been driving in a reasonable manner and therefore negligent under the law. Generally speaking, a victim is only entitled to recover damages if the at-fault driver was negligent (partly or otherwise).
What is a defensive driver?
- Defensive drivers know the applicable driving laws;
- Defensive drivers are aware of techniques to use that help them to drive safely (”safe driving strategies”);
- Defensive drivers are aware of their surroundings as they drive;
- Defensive drivers assess changes in the driving conditions (ocean fog rolls in, for instance);
- Defensive drivers understand the dangers of hazards in their path and take action to avoid or minimize the risk;
- Defensive drivers exercise sound judgment in choosing the safest action to minimize hazardous conditions and accident risks; and
- Defensive drivers are skilled at driving and are able to implement their chosen driving course given the circumstances presented.
As a victim of a pedestrian accident, you may want to evaluate the at-fault driver against this criteria. As part of their risk analysis, insurance companies use these standards to evaluate drivers involved in these crashes and the resulting claims made by victims. If you can prove that the driver in your crash was not driving defensively, then this may help prove your position and get your claim paid.
Company Cars and Driving on the Job
Determining whether or not a driver acted reasonably in a pedestrian accident sometimes involves more than assessing his or her driving actions at or near to the time of the accident. There can be other factors that can complicate the situation in some pedestrian accidents; for instance, was the driver driving on the job? And was that driver driving a company vehicle?
Companies hire workers to do all sorts of tasks that require them to drive a vehicle. Sometimes its their own car or truck; sometimes, it’s a car, van, or truck provided by the employer. Insurance companies have lots to say to businesses that send employees out driving on Florida roads for work, insofar as limiting liability for accidents.
For instance, Secura Insurance has a “Fleet Safety Program Manual” published online that details strategies to reduce the risk of motor vehicle accidents involving business vehicles. So does Traveler’s Insurance (see its Sample Vehicle Safety Program for Non-Regulated Fleets).
Employers can and should expect drivers to drive with reasonable care and caution while on the job. And by researching the risk manuals and fleet safety plans of insurance companies, victims of pedestrian accidents can get a clearer picture of whether or not the driver in their accident was operating that vehicle reasonably at the time of wreck.
Evaluating Pedestrian Collisions for the Reasonableness of the Driver
Since pedestrians as a general rule have the right of way on Florida streets, roads, parking garages, and parking lots, etc., it is assumed that a pedestrian accident was preventable.
Still, Florida law does provide defenses to drivers where circumstances exist that a reasonable driver could not have avoided the crash. That might include a pedestrian doing something unreasonable herself, like chasing a ball into a road without bothering to look for an oncoming car.
Reasonable drivers are those that are on the lookout for pedestrians as they drive and when a pedestrian is spotted, the reasonable driver takes defensive measures and maneuvers to avoid hitting the person on foot.
31 Things to Consider When Determining if a Driver Acted Reasonably in a Pedestrian Accident?
Here are some questions for a victim of a pedestrian accident to consider (and to bring to the attention of the insurance adjuster) when evaluating whether or not a driver acted reasonably. These questions come from the risk assessment research compiled by insurance companies and industry researchers, including the online information provided by Traveler’s Insurance in their risk manual:
- How fast was the car going at the time of the accident?
- What was the speed limit at the place of the accident? Was the driver speeding over that limit?
- Did the driver know that pedestrians were present? Should the driver have known this was a possibility (I.e., near a playground, school zone, shopping mall, grocery store, etc.)?
- Did the driver proceed with caution in the area because there might be a risk of pedestrians being there?
- Did the driver slow down because there might be people walking on foot on or near his traffic path?
- Did the driver give pedestrians the right of way?
- Did the driver know of any minor children who were on foot and on or near his traffic path?
- Was the driver ready to stop if a child were to enter his traffic path?
- Was the driver looking for kids or other pedestrians who might not be aware of motor vehicle traffic (because they were on their phones or playing Pokemon Go, for instance)?
- What route was the driver taking that day? Was the driver accustomed to this route or was it new to him? Drivers should be more defensive on new routes where they may be unexpected dangers.
- Was it common for pedestrians to cross the street in the middle of the block on the street where the accident happened? If so, was the driver aware of this? (School kids leaving school for the day may cross mid-block, for instance.)
- Did he slow down accordingly?
- Where there any signs warning drivers of pedestrian traffic in the area? Pedestrian crossing signs are common near schools, shopping malls, and in some neighborhoods with lots of children.
- Did the driver reduce speed due to the pedestrian traffic sign’s warning?
- Did the driver know that he can voluntarily reduce speed to avoid the risk of pedestrian accidents even if there is no lowered speed limit sign or other warning?
- Did the driver need prescription lenses? Was he wearing them at the time?
- Was the driver distracted at any time near or at the time of the accident? Was there music playing in the car at the time of the pedestrian accident?
- Where there passengers in the car at the time of the pedestrian accident? What were they doing? Were they contributing to the danger of a crash by being loud, unruly, or distracting to the driver?
- Was the driver eating in the car at the time of the accident?
- Were there rear-view and side-view mirrors on the vehicle? Were they working properly?
- Were the brakes on the vehicle working properly?
- Were the tires properly inflated?
- Was the driver intoxicated or otherwise under the influence of drugs or alcohol? Drivers may have less reaction times and ability to assess danger on the road to drive reasonably and prevent a pedestrian accident if they are dosed with flu medicines (like NyQuil), allergy medications (like Benadryl), and other Over the Counter medication as well as the more sinister drugs like opioids and cocaine.
- How congested was the roadway at the time of the accident? Did the driver compensate for having to deal with heavy traffic as he drove through an area where pedestrians were near his traffic path?
- What was the weather like at the time of the accident? Was there a heavy rain, making it hard to see the traffic path? Was it a bright and sunny afternoon where glare might inhibit the driver’s ability to see a pedestrian in his traffic path?
- Was the driver wearing a seat belt? Was there a company policy that the driver should be wearing a seat belt while driving on the job? A reasonable driver will comply with company rules even if it wrinkles his suit.
- What are the company rules about having passengers in the vehicle? Is it allowed at all? Is it allowed during working hours?
- Was there a passenger in the vehicle at the time of the pedestrian accident? It is not reasonable for the driver to bring their kids or their friends along for the ride in a business vehicle, especially during working hours.
- Is there a business manual that tells drivers what company policies are that define reasonable driving of their company vehicle? Was this being followed at the time of the pedestrian accident?
- Was the driver operating someone else’s car at the time of the pedestrian accident? Did he have permission to do so?
- If the driver was driving someone else’s vehicle, was he familiar with how it works and capable of operating the vehicle safely? For instance, was it reasonable for the driver to be driving a large van if he had never done so before the day of the accident?
What Should You Do If You Are Involved in a Pedestrian Accident?
Most people involved in a pedestrian car accident assume that the driver is always the cause of the accident for failing to act in a reasonable manner.
However, there needs to be admissible evidence to support this assumption. The victim must prove the driver failed to act as a reasonable and prudent driver. Was the at-fault driver, in the terms of the insurance company, driving defensively?
A victim may need to provide witness statements, police reports, video, expert testimony, etc. to prove the driver was at fault, so the insurance company (and perhaps the coverage provided by his employer) will agree to accept liability and pay for the victim’s damages (pain and suffering, lost wages, medical expenses, physical therapy costs, etc.).
A good piece of advice if you or a loved one has been injured as a pedestrian, is to at least speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
- Hit By a Car: Pedestrian Accidents in Florida
- As a pedestrian crossing the street, do I have to duty to avoid a car accident?
- What must a pedestrian prove in order to win their personal injury lawsuit?
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.