Posted on Monday, September 23rd, 2019 at 5:28 am
It has been recognized for some time that distracted drivers are a major cause of traffic accidents. Distracted driving has increased in line with the uptake of mobile devices and the incessant demands of social media and the need to communicate. But the very same devices are carried by pedestrians and cyclists. Distracted walking has become as much a problem as distracted driving, except that when there is a collision between a distracted walker and a motorist, it is most likely the pedestrian who comes off the worse for wear.
Distracted walking accidents are most common when pedestrians cross roads, either when on purpose designed crosswalks or in other places. Accidents also occur when pedestrians are actually on sidewalks or are walking close to a highway, usually in an urban setting.
Who is to blame in a distracted walking accident?
Texas now has rules on using mobile devices when driving. Using a cell phone, either to make a voice call or text is not the only type of distraction, of course. There are other distractions, some of which have been around for a long time, like eating or drinking while driving, fiddling with a radio or CD player, reading a newspaper or book, looking out the window, talking to someone in the same vehicle and so on. Generally, any accident that has been caused by negligent distracted driving comes under the umbrella of careless driving. If a pedestrian is hit by a distracted driver, then the pedestrian will have the right to claim compensation through a personal injury claim.
But what if the pedestrian was distracted at the time the accident happened? There are different scenarios here that should be explored separately.
Firstly, if the pedestrian was crossing at a controlled crosswalk and was hit, then the liability would be heavily weighted towards the driver, even if the pedestrian didn’t notice the driver coming towards him/her.
Compensation in a shared fault accident
If the pedestrian was crossing a road at any other point, and was hit by a driver, the relevance of what the pedestrian was doing at the time would be more important. Texas has a modified comparative negligence rule that prevents a plaintiff from pursuing a personal injury claim against someone who injured them if their own share of fault was determined to be more than 50%. In the event that the plaintiff’s share of the blame was less than 50%, then they may then be entitled to a percentage of the total compensation claimed.
For example, a distracted walker is hit by a car somewhere in San Antonio. The accident does not happen at a crosswalk. The pedestrian files a claim for $10,000 in damages. However, the driver’s insurer makes a convincing case that the pedestrian didn’t take enough care when crossing the road and was partly to blame for the accident. Eye witnesses confirm that the pedestrian was listening to music at the time. The case goes to court and the judge determines that the pedestrian was 30% at fault and the driver was 70% at fault. The amount of compensation is calculated at $7,000 i.e. the plaintiff loses 30% of the amount claimed because of the fault apportioned.
Distracted walkers may even become defendants in a reverse personal injury scenario. For example, a pedestrian suddenly crosses a road while busy attending to his cell phone. A driver attempts to miss the pedestrian but crashes into a barrier instead. Because the driver is injured and her car is damaged, she has the right to sue the pedestrian (who remained uninjured) for economic and uneconomic damages. Whether the pedestrian is actually capable of paying compensation is another matter, as it is not compulsory to have insurance when walking.
Distracted driving and distracted walking accidents can become complicated. If you have been involved in any such accident and were injured, you should contact Injury Lawyer San Antonio for advice on pursuing legal action against whoever was to blame. You can contact a personal injury lawyer at the office of Injury Lawyer San Antonio at 833-210-4878.