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Identifying All Potential Claims, Exploring Causes

Whenever investigating a pedestrian collision case, an attorney must be aware of all potential causes for the collision beyond the driver’s or the pedestrian’s negligence. In identifying causes for such collisions, the attorney should cast a very wide net in evaluating all factors that may have impacted the driver’s failure to avoid the pedestrian as well as the pedestrian’s failure to avoid the vehicle. There are a few well-known factors outside of the conduct of the driver and pedestrian which all attorneys should consider when evaluating the causes of the pedestrian accident.

A. Road Defect

A common cause of pedestrian accidents which arise are defective road conditions. Liability of municipality for injury to person or property due to improper plan for or defects in original construction of the street or highway, 90 A.L.R. 1502 (originally published in 1934). In evaluating these type of collisions, an attorney must be diligent in inspecting all aspects of the roadway and traffic signals to determine whether or not any were contributing factors to the collision. For instance, pedestrian signals are subject to standardized timing pursuant to the Manual on Uniform Traffic Control Devices (MUTCD). If a controller for an intersection has been improperly programmed with an insufficient amount of time for the pedestrian to cross, then the private or government entity responsible for programming the controller for the intersection can be held liable for the collision. Tadros v. City of Omaha, 269 Neb. 528, 694 N.W.2d 180 (2005) (court held city may be held liable for failing to provide adequate time for a pedestrian to cross roadway by improperly timing pedestrian traffic device). Such improper programming can result in the pedestrian entering the intersection at an appropriate time, but not being able to completely traverse the intersection before the traffic is given a green signal. This can result in a pedestrian being trapped in the roadway after the signal cycles. Id.

Another road defect, which is well-known to cause or contribute to a pedestrian collision, is the failure to have appropriate signage in areas of roadway where pedestrians may cross. City of Midland v. Sullivan, 33 S.W.3d 1 (2000) (signage near school zone may create liability); Doumbia v. City of New York, 78 A.D. 3d 587, 913 N.Y.S.2d 24 (2010) (city may be held liable for improper signage near construction area). A variety of signage and electronic devices have been developed to give a driver a warning when approaching an area with pedestrians as well as to provide pedestrians with direction. If the government entity responsible for the roadway where the collision occurred failed to properly place signage, the government entity can be held liable for the collision. Id.

Another potential basis for governmental liability for road design is the failure of the government entity to place or maintain pedestrian signals and/or crosswalks at areas which are well known to have pedestrian crossings. This liability can be especially strong if there have been prior collisions with pedestrians at the intersection of which the government entity is aware. District of Columbia v. Carlson, 793 A.2d 1285 (2002) (city may be held liable by failing to provide adequate traffic control measures when traffic light was not functioning); Teeter v. City of Edmond, 85 P.3d 817 (2004) (city may be held liable for improperly maintaining crosswalk).

B. Texting While Driving.

Although it is undoubtedly a basis for liability for the driver in a pedestrian collision if he or she is texting, the individual with whom the driver is texting can also be held liable according to at least one appellate court. Qubert v. Best, 432 N.J.Super. 495, 75 A.3d 1214 (2013) (Supreme Court of New Jersey holds that sender of texts to driver may be held liable if aware that the person was driving). Generally, it must be shown that the person with whom the driver is texting was aware the driver was texting at the time of operating a motor vehicle. This basis of liability is a natural development of tort law in that the person texting with a driver has a duty to exercise reasonable care when engaging in conduct which can create a known danger to other individuals.

C. Passenger Liability for Distracting Driver

A passenger in a car involved in a collision generally cannot be held liable for the collision. However, an exception to this rule is when the passenger has engaged in conduct which distracted the driver at the time of the collision. Distraction of attention of driver of automobile as affecting question of negligence, wantonness, etc. or contributory negligence, 128 A.L.R. 1513 (originally published in 1939). Generally, this basis of liability arises when the passenger is having an argument or heated discussion with the driver or engaging in physical conduct which is preventing the driver from properly operating the vehicle. Hetterle v. Chido, 155 Mich.App. 582, 400 N.W. 2d 324 (1986) (Automobile passenger could be held liable for distracting driver thereby causing injury); Adams v. Morris, 584 S.W.2d 712 (1979) (appellate court in Texas held that passenger may be held liable for diverting attention of driver who then struck pedestrian). While this form of liability does not occur very often, it is important to be aware of its potential in all pedestrian accident cases.

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I was in a head-on collision last year that put me in a wheelchair with a fractured femur. I needed an attorney and my cousin recommended this firm because he had used Briant Mildenhall for his accident. I was glad I called Briant because he always did what he said he would do and kept me informed. We settled with the insurance company and I'm happy with the result. If someone I know needs an attorney, I will tell them to call Briant because he will get the job done. Michael G.
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After a head–on collision I had extremely serious injuries to my back and neck, and some internal injuries. I was airlifted to the hospital and started a huge amount of medical expenses accumulating. I hired a lawyer recommended by a friend but I was not satisfied. My cousin told me about this firm so I talked to Briant Mildenhall about handling the case. I was at ease from the get–go. Briant kept me informed all the way through, was always reassuring and did everything he said he would do. He helped us get the money we needed to get the treatment we needed. Briant was fantastic! Ronda W. (Car Accident)
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I was in a car accident that was complicated from the start. I looked on the internet and called a few different lawyers but they turned me down after they heard my story. When I called this firm Lyn Dodson asked me to talk to her in person. I met with Lyn and Rob Katz and after hearing my story they were confident I had a case. They vigorously pursued my case and over time we built a trusting relationship. Lyn even took time to help me with the traffic issues and other aspects of the case. They were always on my side and talked to me about the advantages and disadvantages of my options... Robert W. (Car Accident)
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After my car accident, I was looking for an attorney and came across the name Katz Wright Fleming Dodson & Mildenhall LLC. My intuition told me to call. I called in and Briant Mildenhall talked to me. He was very clear and honest about my options. As the case went forward, Briant and the staff at the law office always answered my questions right away. I was very confident in Briant's legal ability. He kept me informed every step of the way. I would recommend Mr. Mildenhall and the firm to anyone who needs an attorney. Antonio J. (Car Accident)
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I would recommend the law firm of Katz Wright Fleming Dodson & Mildenhall LLC. Lyn Dodson was my attorney after my auto accident. I had confidence in her legal abilities and experience. She did a very good job for me. She was always there to answer the many questions I asked. The firm is very professional. Lyn always gave you her undivided attention. The firm, especially Lyn, worked with you like a long time friend. Joe B. (Auto Accident)
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Robert Katz isn't your average personal injury lawyer. He has specialized knowledge and experience that the others don't. Timothy W. (Trucking Accident)
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I have nothing but good and positive things to say about Rob. One of the unique things about my case was that I was involved in a bicycle accident with another biker. He took an unorthodox case between two bicycle riders and he could see the logic and liability in it. I was very happy with the result. Rodney H. (Bicycle Accident)
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We just loved him to death. He acted like he cared about us, not just our case. He kept us posted on everything. He even called us on Sundays to update us. My case involved a rear-end collision where I had herniated disks and I had had a prior back injury. Complicated as it was, we were very happy with the outcome. Kathy H. (Car accident)
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Throughout the course of my case, Mr. Katz kept me informed about its status, returned my telephone calls and was very attentive to my needs and concerns. Simply put, he cared not just about my case, but about me. Joseph B.
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I was, and still am, extremely satisfied with Rob's work and with the outcome of my case. Rob strives to be there for his clients, and I was no exception...I would happily recommend Rob to anyone who is seeking legal assistance after suffering a severe injury. Joey E.
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