If a car hits a pedestrian or a cyclist, the first damage is physical and evident. But the subsequent legal process is slow, obscure, and frequently leaves the victim with less compensation than they’re entitled to. This is particularly true if the injured person is not familiar with the principles of liability that apply in such situations.
The Duty Of Care Motorists Owe Vulnerable Road Users
Personal injury law can be understood as a simple notion. Each driver is legally responsible to ensure that their vehicle is operated carefully enough to avoid causing harm to others. In the case of pedestrians and cyclists, also known as Vulnerable Road Users (VRUs), this responsibility is even greater because of the substantial difference in protection between a two-ton car and an individual on foot or bike.
Drivers are not only required to respond to pedestrians and cyclists that they encounter. They are also required to expect those encounters. This means being cautious in residential areas, closely monitoring crosswalks for signals at intersections, allowing for cyclists in bike lanes, and not assuming that no one is around just because they can’t spot anyone immediately.
When a driver doesn’t meet this standard and someone gets injured, a personal injury claim is feasible.
Dismantling The “Pedestrian Always Has The Right-Of-Way” Myth
One of the most common misunderstandings about traffic law is that pedestrians always have the right-of-way. It’s not as straightforward as that.
While drivers must do everything they can to avoid a crash, pedestrians can be legally at fault – and are. Jaywalking, not crossing at a crosswalk, suddenly going off a curb and into traffic, or failing to obey a pedestrian control signal are all actions that can make a pedestrian at least partly responsible.
The same goes for cyclists. In most places, bikes are subject to the same rules as cars – ride with the traffic, stop at the reds and stops, signal your intentions. A cyclist who runs a stop sign and gets hit by a vehicle who had the right of way will lose out on full compensation and may lose out completely, depending on the jurisdiction.
This does not let the driver off the hook. It means how blame is apportioned is important for what the injured person will be able to recover.
How Comparative Negligence Affects Your Compensation
Most legal systems apply some sort of comparative negligence when it comes to situations where both the victim and the accused party are responsible for the accident. Modified comparative negligence allows the injured party to recover compensation as long as their share of the fault doesn’t exceed a specified threshold of 50% or 51%, depending on the jurisdiction. So, if you’re considered 30% at fault for the accident, you can still recover damages, but you will receive 30% less than the total amount.
There are places where contributory negligence still applies, and it’s even more severe – if you’re responsible for 1% of the accident, you get nothing.
That’s why insurance companies make every effort to prove that even the smallest amount of blame rests in the injured pedestrian or cyclist’s hands. It’s not just about winning the moral high ground; it’s about cold, hard cash. The more responsibility they can stick you with, the less they have to pay. This becomes your mindset during any claim – and it should alter your behavior in every conversation, statement, and piece of evidence.
Municipal and Third-Party Liability
Not every accident can be traced back to a careless driver. Factors like road conditions, the design of the infrastructure, and traffic control devices all impact the safety of pedestrians and bicyclists. When these factors lead to a failure of the system, the entity in charge of maintaining it can be held legally responsible.
Premises liability isn’t just about private property. Poor lighting at a crosswalk, missing or worn lane striping, a broken traffic light, blocked signage, and an unfixed pothole have all been culprits in serious accidents that involve pedestrians or bicyclists. If a dangerous condition of public property was a direct or proximate cause of the crash, the governmental body or contractor responsible for maintaining that property shares in the responsibility.
These cases are very different procedurally from a normal personal injury case. Government entities typically have much shorter notice windows – sometimes only a few weeks – that require a victim to put them on notice of a potential claim before any lawsuit can be filed. Failing to do that will bar an otherwise valid claim.
What To Do At The Scene: A Practical Evidence Checklist
The choices you make in the minutes and hours after a collision can seriously affect the outcome of a claim. The evidence gathered, or not gathered, largely determines the entire legal argument that shapes up after the fact. Assuming you’re physically able to do so, this is what matters most:
- Call emergency services. The arrival of police at the scene triggers the filing of an official accident report. This document records the officer’s initial observations, any traffic violation detected, and the basic circumstances of the crash. It’s indispensable.
- Photograph everything before it’s disturbed. The cars’ positions, any skid marks, the state of the road, traffic lights, your injuries, the cyclist’s/pedestrians’ position on the road – everything.
- Obtain the information of witnesses. Names and phone numbers of anyone who saw the crash. This is significant, especially when the driver contests the sequence of events.
- Don’t give a recorded statement at the crash site. Not to the driver’s insurance company. Not without being advised by an attorney.
- Seek medical care even if you don’t feel hurt. Adrenaline can mask pain, so you might not even notice potentially severe injuries sustained during a pedestrian crash, like head trauma, internal bleeding, or soft-tissue damage until hours or days after the incident. Procrastinating with your doctor visit gives insurance companies the opportunity to devalue your claims by arguing the injuries were not serious.
How Insurance Companies Work Against Injured Pedestrians and Cyclists
Pedestrian traffic deaths are at a 40-year high, with an estimated 7,508 pedestrian fatalities in traffic crashes in 2022 (Governors Highway Safety Association). Insuring these claims has generated enough volume to practically give rise to an entire insurance defense industry. One that is financially motivated to minimize payouts.
It’s easy to know what to expect if you do know. Insurers tend to reach out to injured parties immediately, at a time when they are in shock, or possibly still recovering from the trauma, while emotions are still raw. The adjuster will then ask for a recorded statement. Cue the tape recorder. No one is taking that statement to help the victim. They are trying to find ways to use it against the victim, to either find ways that what the victim said could be incorrect, to get the victim to admit some amount of fault, or to lock the victim into a version of the events before they fully comprehend just how serious their injuries are.
The other common practice is the fast settlement offer. This offer often comes before the extent of the injuries is fully known, before extensive or long-term treatment has begun, and before a full diagnosis has been provided. The number may seem large to someone who is suddenly in a great amount of pain and facing large medical bills, but in the grand scheme of things the number is in no way proportionate to the final cost of the injuries.
When faced with aggressive insurance adjusters who will attempt to shift as much blame as possible onto a cyclist or pedestrian who was injured by one of their insured drivers, the only way to make sure you do not accept a lowball offer before you are fully aware of your damages is to get representation from an experienced personal injury firm like Rand Spear. Once that paper is signed and that final payment is taken, you can no longer ask for more. That is the finality they are banking on.
Understanding The Full Scope Of Compensable Damages
Most people who’ve been injured don’t realize what’s compensable in a personal injury claim. All they think about are the bills they have right now. But a real personal injury claim factors in a lot more than that.
For example, there are the economic damages, which are the tangible, itemized bills: ambulance, ER, surgery, hospital stay, physical therapy, doctor’s check-ups, medications, medical devices, even home modifications, like a wheelchair ramp or a hospital bed in your home, if you need them. Then there are the ongoing medical costs for the foreseeable future.
If your injuries forced you to miss work for a certain period of time – or will prevent you from going back to the job you had before – that’s included in the damages too.
Beyond all that are the non-economic damages, the less concrete, more profoundly felt costs of an injury. Pain and suffering, emotional turmoil, expected post-traumatic stress, loss of quality of life, and, potentially, loss of companionship and spousal support are all part of filing a personal injury claim. These amounts can’t be added up from a bill or an invoice, which is why insurers often try to minimize these damages first. If they can get you to admit that your emotional distress isn’t quite as bad as you made it sound, or that maybe you suffer from depression totally independently of the accident and injuries, they can knock a huge chunk off your recovery.
The Statute Of Limitations
Deadlines vary by location and injury type which means it’s not easy to know immediately whether time remains to file. After a pedestrian or cyclist accident, evidence of what happened can disappear in days or weeks as routine maintenance, cleaning, repair or construction alters the scene forever. Witnesses remember less as time passes. If an out-of-court settlement is the hope, the insurers have their own lawyers and they aren’t waiting to see what you’re going to do. In negotiations, rushing to meet a deadline undermines your leverage and your lawyer’s.
