Distracted driving has become one of the most common causes of motor vehicle accidents, including those involving pedestrians. Multi-tasking drivers were responsible for 3,142 deaths and another 280,000 injury victims based on the most recent official annual data from the National Highway Traffic Administration (NHTSA). When distracted drivers run down a pedestrian, the consequences can be devastating because the traveler on foot has no protection from serious injury. Although distracted driving has received a lot of attention from the media and traffic safety experts, much less attention has been focused on “distracted walking.” If a driver’s car hits a pedestrian, evidence that the person on foot was distracted can compromise his or her claim.
While a pedestrian accident claim can still be brought by a distracted pedestrian, someone who fails to pay adequate attention when walking might have any recovery reduced. Pedestrians (and motorists) have a legal duty to take reasonable care to avoid causing themselves foreseeable harm. Although the law varies depending on the jurisdiction, most states have some form of comparative or contributory negligence law that can be asserted as a partial or total defense to liability. Under the traditional approach, a plaintiff would be denied any recovery for even a minimal amount of fault.
A majority of states have adopted a system of comparative negligence that permits an injured pedestrian to recover a certain amount of damages even when some percentage of fault is assigned to the injured pedestrian. In jurisdictions that follow a modified comparative negligence approach, the amount of a plaintiff’s recovery is reduced in proportion to the percentage of fault allocated to him or her. Some jurisdictions deny all recovery once a plaintiff’s level of fault reaches a certain level (50 or 51 percent depending on the jurisdiction) while other jurisdictions allow some recovery even when the plaintiff is determined to be mostly at fault for failing to take reasonable care for his own safety.
Insurance companies for at-fault drivers often attempt to shift blame to a pedestrian. This defense increasingly is based on the allegation that the pedestrian was a distracted walker. If you are texting on a cell phone or otherwise not watching where you are walking, evidence might be presented that your lack of attention contributed to your injuries. An experienced pedestrian accident lawyer understands your rights and can anticipate these types of defense strategies. However, your legal claim will be subject to one or more time limits, so you should seek legal advice promptly to avoid undermining your claim.
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