Red Flags for Pedestrian Accident Cases You May Wish to Avoid

The most important decision which is often made in a pedestrian litigation case is whether or not to accept the case itself. There are certain red flags which exist in pedestrian litigation matters which an attorney should consider before agreeing to represent an individual who has been injured in a pedestrian accident. If these red flags are present, this does not necessarily mean that you should automatically reject the case. However, before accepting the case you should thoroughly analyze the “red flag” issue and develop an appropriate strategy to address it. In addition, you should alert the client to the challenge in the case, so that they are not surprised if the case is unsuccessful for that reason.

One of the first red flags in any pedestrian accident case occurs in what is classically called a “dart out” case. These cases arise when either a child or an adult dart into the roadway and are struck by a vehicle. In such cases, the defendant will have an extremely strong argument that it was the Plaintiff’s negligence which caused their injury and not the operator of the motor vehicle. Liability for injury to pedestrian who suddenly darts or steps into the path of automobile, 113 A.L.R 528 (originally published in 1938). In addition, the defendant will be entitled to a jury charge on “emergency” indicating that they only need to exercise such reasonable care as an individual who is in a similar situation would exercise. This is a very powerful jury charge for a defendant to receive in a case. Farris v. BUI, 147 Mich. App. 477, 382 N.W.2d 802 (1985). Under laws in many states, they can actually argue to the jury that they should put themselves in the place of the defendant when these accidents arise. Attorneys often believe that this is not permissible as it is a “golden rule” argument. However, many states permit such arguments as they pertain to liability, but not with respect to damages. See, Schaffer v. Ward, 510 So.2d 602 (1987); Naimat v. Shellbyville Bottling Company, 240 Ga. App. 693, 524 S.E.2d 749 (1999).

When deciding whether or not to take a dart out case, an attorney should evaluate the amount of time that a driver had to react to the person entering the roadway. In doing so, it is important to have sufficient information to determine the distance the car was from the place of the collision with the pedestrian as well as the speed of the vehicle. This is generally only possible if there is sufficient eyewitness testimony and/or physical evidence such as skid marks. If the driver is traveling within the speed limit or very close to the speed limit, then it is very unlikely that a jury will find in favor of the plaintiff. However, if the driver is speeding, intoxicated or otherwise impaired, an attorney may wish to consider accepting the risk in pursuing such a case.

A second type of pedestrian accident case which raises significant red flags is when the pedestrian is crossing the roadway illegally. Accordingly, it is extremely important to evaluate whether or not the pedestrian had the right of way when deciding whether or not to accept the case for litigation. A pedestrian is generally considered to be crossing illegally when they have a do not walk sign or are crossing the roadway against a red light. O.C.G.A § 40-6-22 (Georgia statute). However, these are not the only circumstances in which the pedestrian is crossing illegally. For instance, many roadways have restricted access for pedestrians. O.C.G.A § 40-6-96 (Georgia statute). In addition, regardless of whether or not any particular statute was violated, if a pedestrian is crossing the roadway which has a crosswalk in the vicinity, then a defendant will have a strong argument that the pedestrian was at fault for failing to use the available crosswalk.

Another red flag in a pedestrian accident case is when a situation of poor visibility existed for the driver. This can occur as the result of several factors, including the conduct of the plaintiff. An attorney should be cautious when accepting a pedestrian accident case which occurred at night. Generally, the vehicle would be far more visible to the pedestrian than the pedestrian will be to the vehicle in the evening. Added factors that raise concerns for this type of litigation is when the pedestrian is wearing dark clothes, thereby further reducing his or her visibility to the driver.

In addition to night time visibility issues, there can also be substantial visibility challenges to a pedestrian accident case as the result of weather. These generally arise when a collision with a pedestrian occurs during times of heavy rain, sleet or snow. The pedestrians are generally not very visible to the driver during these inclement weather situations. Prior to accepting a case of this nature, it would be extremely helpful for the attorney to interview witnesses to the collision to make a determination on whether or not the weather was a substantial impediment to the driver’s visibility. Tello v. Ramada Inn, Inc., 697 697 So.2d 358 (1997) (Driver was held not to be negligent for striking pedestrian crossing street at night in dark clothing).

While there are certainly other red flags to pedestrian accident cases, if an attorney evaluates the cases for these factors, they will be able to eliminate a substantial majority of pedestrian collision cases with a low likelihood of success. It is especially important to note that if multiple “red flag” factors are present in the case, it is extremely unlikely that the case will be successfully litigated by the attorney.