Pedestrian accidents are on the rise nationwide.
After an accident, though, understanding and asserting your rights is not always easy. Even if you have the foundation of a rock-solid case, questions about insurance coverage, liability, and damages could turn your lawsuit upside-down. Here are some of the most frequently asked questions and answers about pedestrian accidents in New York state:
- Who is At-Fault in a Pedestrian Accident?
One of the most common misconceptions in law is that pedestrians always have the right of way.
In New York, almost anyone who uses the road, whether they are walking, driving, or riding a bicycle, has a legal duty of care. In law, a duty of care is a responsibility to act as a reasonable person would under similar circumstances. Everyone has a duty of care, but this duty can vary. Pedestrians, for instance, are typically expected to look both ways before crossing the road. Motorists, on the other hand, must keep their attention on the road.
In pedestrian accidents, fault is often shared: the driver might be 90% at fault, but the pedestrian could be 10% at fault if they were jaywalking or more focused on their phone than on the traffic.
Under New York law, though, shared fault does not bar recovery. Even if you were partially at fault for a pedestrian accident, you could still be entitled to file a personal injury lawsuit.
- Does New York No-Fault Insurance Cover Pedestrian Accidents?
New York is a no-fault state, which means that residents are expected to file a claim with their own insurance company before filing a personal injury lawsuit. If the victim is a pedestrian, they may be able to file a claim with their own company or the at-fault driver’s insurance carrier. However, no-fault insurance is subject to fairly strict limitations, and it often falls flat when victims have suffered particularly serious injuries.
In New York, pedestrian accident victims who meet the state’s “serious injury threshold” can typically file a personal injury lawsuit if their no-fault benefits do not cover the cost of their losses.
- How Can I Establish Liability After a Pedestrian Accident?
Every personal injury lawsuit is unique, but most revolve around a similar set of facts, arguments, and theories. In most pedestrian accident claims, you will need to prove the following:
- The defendant owed you a duty of care;
- The defendant breached their duty of care by acting negligently;
- The defendant’s negligence was the direct cause of your accident;
- You suffered serious injuries as a result of the accident; and
- You have sustained compensable damages or losses.
Establishing these elements is not simple, and it often involves much more than calling in an eyewitness or replaying dashcam footage. Even if you have evidence that the defendant was at fault, for instance, their lawyer or insurance company could try to challenge your claim for damages, arguing that you are asking for much more than you really need to regain your financial independence.
- What Evidence Do I Need to Prove My Claim?
Different types of accidents and different kinds of claims often call for different forms of evidence. In a standard pedestrian accident lawsuit, evidence could include:
- Pictures that you took immediately after the accident;
- Footage from a surveillance camera or dashcam;
- The at-fault driver’s vehicle “black box” and cellphone records;
- Eyewitness testimony and input from an accident reconstruction expert; and
- Your medical records.
5. How Much is My Claim Worth?
New York does not cap damages in most personal injury claims, which means that you could receive as much money as you need to reclaim your financial independence and begin building back better.