If you asked most people who would win a claim when a car strikes a pedestrian, they’d tell you that the driver of the car is clearly at fault and the pedestrian would easily win the claim. Yet they’d be absolutely wrong.
The winner of the claim is based on the party who is at fault. That could be either the driver or the pedestrian. It’s quite easy for a pedestrian to lose a personal injury claim if they don’t have adequate representation.
When is a pedestrian at fault?
A pedestrian can be at fault for an accident if they:
Fail to look both ways before crossing the street.
Fail to wait for traffic to stop before crossing a multi-lane road.
Text and walk at the same time.
Use the phone or listen to music while crossing the street.
Fail to wear bright, reflective clothing while walking on rainy days or at night.
Fail to follow traffic signals.
In addition to all of these standard things, pedestrians are expected to try to make eye contact with drivers before crossing, as well as to watch for drivers who may be making turns.
Even if the pedestrian is not found 100% at fault they may lose money.
You can make a third-party tort claim as long as you are less than 51% at fault. Yet every percentage of fault that the pedestrian is assigned can result in their personal injury award, or their family’s wrongful death award, being reduced by a commensurate amount.
Insurance companies will generally do their best to get as much negligence assigned to the pedestrian as possible.
Alberta courts do generally assume, thanks to the Traffic Safety Act, that a motorist will be found 100% liable for crashes unless they can prove that there was nothing the driver could have done to prevent the accident. The province assigns drivers a higher duty of care than pedestrians because they are the ones handling an 1,000 kg machine. Yet that doesn’t mean that a pedestrian that makes a mistake won’t be assigned a large percentage of the fault.
Why do pedestrians have such a hard time in these cases?
Drivers rarely sustain injuries when they strike a pedestrian. Often their cars don’t take any damage either.
Thus it is in the best interests of the insurance company to get that driver “off the hook.” Even if they have to pay some benefits to their own insured, those benefits are likely to represent a lot less money than paying you benefits, especially given the injuries that usually result when a driver strikes a pedestrian.
Insurance companies may even try to trick victims into making mistakes that can hurt their case.
This is why it’s so important for pedestrians to get a personal injury lawyer as soon as they’re medically capable of doing so. This gives us time to start countering insurance company tricks and the opportunity to gather more evidence which can help.
Call for your free consultation today.