In Florida, pedestrians routinely share the road ways with cars, trucks, bikes, and buses: our sunny weather and fun, active lifestyle encourages people to get out and walk, jog, stroll, or run. Kids walk to school and tourists roam the scenic locales on foot. Residents walk for exercise, and our streets are filled with joggers and runners of all ages. Foot traffic is part of daily life in South Florida.
Unfortunately, there are times when walking can be a dangerous activity. Pedestrians are often hit by cars in sometimes fatal traffic accidents. When a pedestrian accident does happen, a victim does have the right under Florida law to pursue a claim for damages for things like lost wages and pain and suffering. However, a pedestrian should expect the driver (as well as his or her insurance company or lawyer) to bring up questions of fault, and whether or not Florida pedestrian laws were followed by the person who was struck by the car, bicycle or other motorized vehicle.
Quick Tip: The Average Pedestrian Accident Settlement Is $70,000.00 (Details)
Introduction to Pedestrian Accidents
This article provides an overview of Florida pedestrian accident law and outlines for those people who have been injured in a traffic accident while walking or jogging what they need to know about their rights and remedies. Topics discussed below include:
- Pedestrian Law
- Right of Way Laws
- Civil Law and Criminal Law in a Pedestrian-Car Accident
- Fault for Pedestrian Accidents
1. Pedestrian Law: The Dangers of Walking in Florida
The Florida Legislature has passed a specific set of laws dealing with pedestrian accidents, Florida Statute 316.130. [1] Any accident involving a person being hit by a car in Florida will be reviewed by the police, insurance adjusters, investigators, and lawyers against these laws. Included in the Florida Pedestrian laws are specific requirements regarding crosswalks, hitchhiking, sidewalks, and right of ways.
There is a significant amount of statutory and case law (court decisions) addressing pedestrian accidents and the injuries (and sadly, sometimes deaths) that can result from them. Pedestrians who violate pedestrian laws can be found liable for a “noncriminal traffic violation” under Florida Statute 316.130(19). [2] Drivers who violate Florida laws can face much harsher penalties, both criminal and civil, for negligently causing a pedestrian accident where their car has hit and injured a pedestrian.
Who is a Pedestrian under Florida law?
Under Florida Statute 316.003(28), anyone on foot is a “pedestrian.”[3] However, there must be some kind of movement or motion here; for instance, someone working on their stalled car is not considered to be a pedestrian under Florida law. [4] A bicyclist also is sometimes considered a pedestrian, at least for no-fault law purposes.
2. Right of Way Laws
In Florida, both people walking along the street and those driving vehicles along that street are considered to have equal rights to use that roadway and both walker and driver are considered to have a duty to respect the other’s rights of movement. Both pedestrians and drivers are required to exercise reasonable care while walking or driving. [5]
As a general rule of law, pedestrians and motorists have a reciprocal right to use all public roads in Florida. Motorists are not always 100% legally responsible for damages in all pedestrian accidents.[6]
The general legal rule of equal rights to the roadway is limited in Florida by specific laws that apply to pedestrians walking alongside motor vehicles. There are also laws that define the duties of drivers to those who are walking on the road. Things like the time of day (or night); the manner in which the pedestrian is walking along (running is different from strolling, for instance); and the age of the pedestrian (children are treated differently under the law) are all factors in pedestrian accident claims.[7]
For example, there is a specific statute that defines the “right of way” for pedestrians (the “Florida Right of Way Law”). Florida Statute 316.130(15) provides [8]:
Notwithstanding other provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle and give warning when necessary and exercise proper precaution upon observing any child or any obviously confused or incapacitated person.
3. Civil Law and Criminal Law in a Pedestrian-Car Accident
In Florida, every person who operates a motor vehicle of any kind (car, minivan, truck, commercial vehicle, big rig, SUV, motorcycle, etc.) must exercise “ordinary, reasonable, or due care” toward pedestrians. [9] This includes consideration of the apparent ability of the pedestrian — or their lack of ability — to exercise care for his or her own safety on the road. [10]
If the driver fails to meet that duty, in other words if the driver is negligent and hits the pedestrian with a vehicle, then the driver may be liable to the pedestrian for all damages that are allowed in a Florida personal injury claim. These damages include not only medical expenses and lost wages, but also intangible or “non-economic” damages such as pain and suffering, loss of enjoyment of life, disability, disfigurement and mental anguish.
A driver who hits someone walking on a Florida roadway may also face criminal liability for the harm that is suffered by the pedestrian victim. Pedestrian accidents can result in criminal charges including vehicular homicide, which will result in the arrest of the driver and prosecution of the criminal charge by the Office of the District Attorney where the accident occurred. [11] However, criminal charges stemming from motor vehicle accidents involving pedestrians will normally only be brought if there has been reckless conduct as opposed to simple negligence. Reckless conduct would include driving while impaired (for which there are criminal statutes), racing and other reprehensible conduct.
4. Fault for Pedestrian Accidents
In Florida, not every driver who hits a pedestrian will be held legally liable for the accident and the injured victim’s damages. [12] In order for an owner or operator of a motor vehicle to be liable to the person he or she has hit with their car, the pedestrian must prove that the driver was negligent in operating the vehicle at the time of the crash. [13] If the driver exercised reasonable care in the operation of the vehicle, then the driver will not have to pay for the accident victim’s damages. Holding the driver responsible for damages depends upon a demonstration of “fault” on the part of the driver in the pedestrian accident. [14]
A. Driver’s Duty of Care
The driver on any Florida road is responsible for driving that vehicle with the proper license and in accordance with Florida traffic and safety laws. If the driver can see a pedestrian who is being cavalier or dangerous with his personal safety, that driver is required to take action to prevent an accident with that person. [15] For instance, if a driver sees a pedestrian crossing an intersection illegally, against the light, that driver must take steps to avoid hitting the pedestrian even though the driver has the right of way. However, the pedestrian must prove that the driver should have been able to react and stop in time to avoid the impact, which is sometimes a difficult task. Many times, fault is found both on the part of the pedestrian and the driver. [16]
Each pedestrian accident is different, and the determination of the legal duty placed upon the driver will depend upon the unique circumstances of that situation. For example, the road itself is a factor: busy downtown streets are treated differently than suburban ones; campus roadways or streets near arenas, shopping malls, or bus stations will be considered to have a higher risk factor and demand more vigilance and a higher duty of safety for a driver in a pedestrian accident than a rural road. However, the duty placed on all motorists no matter where they are driving is “reasonable care under the circumstances.”[17]
B. Driver’s Special Duty of Care to Children
Children who are walking near moving traffic get special protection under Florida laws. [18] There is a special jury instruction given in personal injury cases involving pedestrian children that indicate that a motorist has a higher duty when the motorist knows or should know that children are on or near a street-regardless of where the child is located. However, this instruction usually applies in situations near schools or other places where children tend to congregate.
As the Florida Supreme Court wrote in 1952 [19]:
The general rule … is that one manipulating a motor vehicle on the highway, whether backing, starting, or proceeding ahead, must exercise reasonable care, circumstances being the guide as to what constitutes reasonable care. If the driver has reason to think that children may be near, reasonable caution requires that the driver be on the lookout for them.
C. Pedestrian’s Duty of Care
As shocking as it may seem, there are times when a pedestrian will be held to be at fault for the accident in which they were hit by a car. Since Florida does not make every driver responsible for all pedestrian accidents, there will be occasions when the courts will find that the person walking along the roadway is at fault rather than the person driving the car. For instance, if a Florida driver is driving along the road at the speed limit, and someone jaywalks — or suddenly starts to cross the road, emerging from behind parked vehicles along a downtown street, then that pedestrian may be found negligent and not the driver, who could not see the jaywalker in sufficient time to take evasive action. [20]
There are many laws that pedestrians must follow as they walk along a Florida roadway. [21] These are statutes designed to protect people who are walking and moving near the dangers of traffic. Florida pedestrian laws include:
- Pedestrians must obey traffic lights, stop signs, and street markings unless a police officer directs them to do otherwise;
- Pedestrians must use available sidewalks – walking on a sidewalk is the law, it’s not an option;
- Pedestrians must walk on the shoulder of the road, on its left side facing traffic, if there is no sidewalk.
Pedestrians who are hit by a car while on foot and are shown to have violated pedestrian safety statutes will have a more difficult time winning their case for damages against the driver who hit them.
Safe Pedestrian Practices
How can you and your loved ones avoid being hit by a car or truck and seriously hurt in a pedestrian accident? The National Highway Traffic and Safety Administration and the National Safety Council have studied pedestrian accidents for years and offer many suggestions. These include:
1. Avoid Texting While Walking or Jogging
As a pedestrian sharing the roadway with motor vehicles, you need to be alert about your surroundings. Phones and other electronics are distractions that a pedestrian should not use while walking. Never use a cell phone or other electronic device while walking and don’t wear headphones while walking or jogging. If you need to talk or text, stop and take the time to use your phone. When you’re done, put it away and continue on your path.
2. Look Both Ways At All Crossings
Take your time. Make sure that you look left, right and left again before entering into the street and starting to cross. Why look that second time? A motor vehicle can move very fast and in the time it takes for you to glance to your right, that car or truck or minivan that you didn’t see before may have entered into your zone of danger. Cars driving even at low speeds can cover a big distance very fast.
3. Cross Streets at Designated Crosswalks and Intersections
Jaywalking is illegal for a reason. Failing to cross a street at the corner can be the cause of a pedestrian accident. Always cross at the corner intersection. Why? This is where you can see the vehicles in the roadway – and where they are best able to see you. Also, make sure that you make eye contact with the drivers as you walk through the intersection. Make sure they know that you are there.
4. Maintain Visibility by Wearing Bright or Reflective Clothing
Drivers may be distracted by things like conversations in their vehicle, or the news report, or the music playing on their stereo. Bad weather conditions in Florida like fog or rain are common. Also, many streets have landscaping, parked cars or other things that can block the driver’s view of the sidewalk or path alongside the roadway. All this means that the pedestrian needs to make sure they are easy to see. Things that help the driver spot the person walking or jogging alongside the street include bright clothing as well as reflective gear. Tennis shoes can have reflective stripes, for instance. Joggers can wear reflective vests, especially if they are running at dusk or after dark.
5. Teach Children These Safety Tips
Children are often the victim of pedestrian accidents. According to SaferKids.org, pedestrian-vehicle accidents are the FIFTH leading cause of death for kids between the ages of 5 and 19. Parents, check with your school to make sure that pedestrian safety is taught to your children. Also, make sure your kids know the dangers of walking alongside a street with moving vehicles and how they can minimize the risk of being hit by a car. And remember, children under the age of 10 should never cross a street without the help of an adult.
Compensation
If you are a victim of a pedestrian accident, then what kind of damages will be covered in your personal injury claim? A pedestrian accident will be processed under Florida law like any other negligence claim. Damages that are allowed by law for negligence that causes an accident include:
- medical expenses;
- rehabilitation expenses;
- lost wages;
- pain and suffering;
- diminished quality of life; and
- funeral/end of life expenses from wrongful death.
Common Causes
Studies have shown that there are common causes for most pedestrian accidents. From research undertaken by NHTSA, we know that most Florida pedestrians hit by a car will be the victims of:
- drunk driving;
- distracted driving;
- texting and driving; or
- failure to yield.
Distracted walking is another factor that is a growing concern in pedestrian accidents. Here, the distraction is not on the part of the driver, but the person who is walking. See, “Distracted Walkers Pose Threat to Self and Others,” by Jane E. Brody and published in the New York Times on December 7, 2015.
Common Injuries
Sadly, most pedestrian accidents are serious and many are fatal. The impact of a motor vehicle hitting a human being, even if it is moving at a slow rate of speed, can be catastrophic. Many accident victims, who have been hit by a car, truck, or SUV, will suffer permanent injuries that include:
- Traumatic brain injury;
- spinal cord injury;
- broken bones;
- amputation of arm or leg;
- shoulder injury; and
- scarring and disfigurement.
Additionally, some pedestrians will die as a result of their injuries, leaving their grieving families to pursue wrongful death claims against the driver
Insurance Coverage for Pedestrian Accidents
Since a pedestrian accident involves a motor vehicle, the law related to car accident compensation applies. Which means, the driver’s automobile insurance will likely pay for the victim’s damages. Also, depending upon the facts of the case, others may also have insurance coverage that will cover the accident victim’s injuries. For instance, if the vehicle is for commercial use, like a taxi, bus, or delivery van, then the owner and operator of the vehicle may share liability. See, “Car Accidents With Company Cars or Commercial Vehicles: What is Respondeat Superior?.”
What Should You Do?
When your child, spouse, or parent is hit by a car in Florida, it can result in a major life altering event. Pedestrian accidents are emotional and traumatic events for everyone who loves and cares for the accident victim, as well as for the injury victim who suffers the terror of being hit by a huge, moving vehicle. Children and elders hit by a car are cases that can be especially traumatic.
Pedestrian accident cases must be evaluated on a case by case basis. The particular circumstances of each accident — where someone has been hit by a car — must be individually assessed, and insurance companies are notorious for contesting the issue of fault in these situations. It may well be that a jury will end up deciding who was at fault in a Florida car accident where someone was hit by a car and hurt, because the driver will argue that the pedestrian was at fault.
Of course, pursuing a legal claim or filing a lawsuit to pursue injury claims against a negligent driver after a pedestrian accident should not be the first concern of loved ones after someone has been hit by a car. Medical care and compassionate support in dealing with the event itself must be the first concerns. However, Florida laws are established to protect and provide for victims of pedestrian accidents in the State of Florida. Pedestrians claims against drivers are legitimate and damages are available for immediate and long-term injuries sustained by someone hit by a car.
A good piece of advice if you have been harmed by a pedestrian accident, is to speak with an experienced personal injury lawyer before you file a claim 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) to answer your questions.
NOW WATCH:
What must a pedestrian prove in order to win their personal injury lawsuit?
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Endnotes
[2] Florida Statute 316.130(19)
[3] Florida Statute 316.003(28)
[4] AAA Life Ins. Co. v. Nicolas, 603 So.2d 622, 624 (Fla. 3d DCA 1992)
[5] Komer v. Shipley, 154 F.2d 861 (C.C.A. 5th Cir. 1946); Bellere v. Madsen, 114 So. 2d 619, 80 A.L.R.2d 1 (Fla. 1959); Nelson v. Ziegler, 89 So. 2d 780 (Fla. 1956)
[6] Williams v. Scott, 153 So. 2d 18 (Fla. Dist. Ct. App. 2d Dist. 1963)
[7] Komer v. Shipley, 154 F.2d 861 (C.C.A. 5th Cir. 1946); Baston v. Shelton, 152 Fla. 879, 13 So. 2d 453 (1943)
[9] Baston v. Shelton, 152 Fla. 879, 13 So. 2d 453 (1943); Becker v. Blum, 142 Fla. 60, 194 So. 275 (1940); Greiper v. Coburn, 139 Fla. 293, 190 So. 902 (1939)
[10] Kidd v. Cox, 40 So. 2d 454 (Fla. 1949)
[11] Lawrence v. State, 801 So.2d 293 (Fla. 2d DCA 2001)
[12] Rubio v. Armour & Co., 94 Fla. 761, 116 So. 40 (1927); Riley v. Willis, 585 So. 2d 1024 (Fla. Dist. Ct. App. 5th Dist. 1991)
[13] Florida Motor Transp. Co. v. Hillman, 87 Fla. 512, 101 So. 31 (1924)
[14] & [15] Brown v. American Motorists Ins. Co., 368 So. 2d 597 (Fla. Dist. Ct. App. 1st Dist. 1978)
[16] Robb v. Pike, 119 Fla. 833, 161 So. 732 (1935)
[17] Preger v. Gomory, 55 So. 2d 541 (Fla. 1951); Prior v. Pounds, 113 Fla. 308, 151 So. 890 (1933).
[18] Riley v. Willis, 585 So.2d 1024, 1026 (Fla. 5th DCA 1991)
[19] Miami Paper Co. v. Johnston, 58 So.2d 869, 871 (Fla.1952)
[20] Preger v. Gomory, 55 So. 2d 541 (Fla. 1951)
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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
