When you get injured in a pedestrian accident, you need to protect yourself against the insurance companies. They are going to do everything they can to pay you as little as possible—and this may include blaming you for your own injuries.
If you are partially responsible for your injuries, this could reduce the amount you are entitled to recover. It could even prevent you from filing a claim entirely if the accident was primarily your fault. But, in most cases, pedestrians aren’t responsible for their own injuries, and the insurance companies’ accusations of comparative fault are nothing more than an attempt to avoid paying just compensation.
What is “Comparative Fault” in a Pedestrian Accident Case?
The concept of comparative fault has to do with apportioning blame between the parties that are involved in an accident. Under different states’ comparative fault laws, if someone who suffers injuries in an accident is partially responsible for causing the accident (or increasing the severity of their injuries), this either reduces or eliminates their right to just compensation.
Until recently, Florida had a “pure comparative fault” law. Under this law, pedestrian accident victims (and other accident victims) could file a claim regardless of their percentage of fault. For example, even if a victim was 99 percent at fault, he or she could theoretically recover one percent of his or her losses.
But, in March 2023, Florida shifted to a “modified comparative fault” standard. Under Florida’s new modified comparative fault law, accident victims can only file a claim if they are not primarily responsible for their injuries. In other words, if an accident victim is deemed 50 percent at fault, he or she is entitled to recover 50 percent of his or her losses. But, if an accident victim is deemed 51 percent at fault, he or she is entitled to nothing.
With this change, the insurance companies now have even more incentive to blame pedestrian accident victims for their own injuries. As a result, it is especially important to have an experienced lawyer on your side.
Examples of Comparative Fault (or Partial Fault) in Pedestrian Accident Cases
So, when might comparative fault play a role in your case? After pedestrian accidents, the insurance companies look for any excuse to blame victims for their own injuries. Some examples of common allegations of comparative fault (or partial fault) in these cases include:
- Failing to look before crossing a busy street
- Entering a crosswalk without the right of way
- Crossing outside of a crosswalk
- Attempting to cross in front of an oncoming vehicle
- Walking or running on the side of a busy road
- Walking or running after dusk without lights or reflective clothing
- Falling or stumbling into the road
While all of these might be indicative of partial fault, none of them necessarily mean that you deserve anything less than a full financial recovery. As a result, regardless of the circumstances involved in your pedestrian accident, you should not trust the insurance companies’ assessment of liability. Instead, you should hire a lawyer to investigate promptly, and then you should make informed decisions based on your lawyer’s advice.
How Do You Prove that You Weren’t Partially at Fault in a Pedestrian Accident?
Let’s say the insurance companies accuse you of being partially to blame in your pedestrian accident. If this happens, how do you prove that you are still entitled to full compensation?
To disprove any allegations of partial fault, you will need to rely on your lawyer to gather evidence that demonstrates both: (i) who was at fault in the accident; and, (ii) that you weren’t being negligent when the accident happened. Evidence that can be used to prove fault in a pedestrian accident includes things like:
- Eyewitness testimony
- Cell phone photos or videos
- Traffic camera or surveillance camera footage
- Skid marks, damaged signs or traffic signal posts, and other types of forensic evidence from the accident site
Evidence that can be used to prove that you weren’t being negligent includes things like:
- You waited to cross until you had the right of way
- You were walking in the crosswalk or on the correct side of the road
- You were not on your phone
- The driver was speeding or ran a red light or stop sign—suddenly and unexpectedly putting you in a dangerous position
Ultimately, however, it is on the insurance companies to prove that Florida’s modified comparative fault law applies. If your lawyer presents evidence of liability and the insurance company cannot present any evidence that supports its allegations of partial fault, then you are entitled to full compensation. An experienced lawyer will be able to expose these types of flaws in the insurance companies’ defense and fight to recover the full compensation you deserve.
Protecting Your Right to Just Compensation After a Pedestrian Accident
With all of this in mind, one of the most important things you can do after a pedestrian accident is hire an experienced lawyer to represent you. Your lawyer will be able to conduct a thorough investigation, deal with the insurance companies for you, and help you make informed decisions every step of the way.
As a final note, it is also extremely important that you follow your doctor’s advice (or seek a second opinion, if necessary). If you ignore your doctor’s advice, the insurance companies may be able to use this to argue that you are partially to blame for your injuries’ costs and long-term effects. So, if you suffered serious injuries in a pedestrian accident, get the treatment you need, and rely on your doctor and lawyer to help you recover as fully and quickly as possible.
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