Hit Pedestrian-Jaywalking

rainbow6 · #1 09-27-2008, 11:21 AM

What is the name of your state (only U.S. law)? CA

I hit a pedestrian. The circumstances are that it was dark, he was not in the crosswalk, I merged into the left lane, accelerated and in a blink of an eye he was there - I had no time to react. Witnesses at the seen said they saw him running between cars-he simply came out of the cars into the left turn lane. One witness said I "swerved" into the left turn lane - which is crazy! How do I swerve into a left lane? And how does that take away the fact that he was not in a crosswalk, he is dark skinned, wearing a navy jacket and there was not a streetlight? I have one witness that said she almost hit him herself. My insurance tried to settle(which I only have 15k in liability), but now it looks like he is going to sue me. Do I not have any rights in this - when it was determined by the police report that it was his fault? I appreciate your help!

seniorjudge · #2 09-27-2008, 11:25 AM

Let your insurance carrier handle this.

CdwJava · #3 09-27-2008, 12:16 PM

And what does the police report say? On page 2 (in the upper left corner) there will be a box for the PCF (Primary Collision factor) - which party is assigned the PCF and what is the code section?

- Carl

ecmst12 · #4 09-27-2008, 01:53 PM

Why did your insurance even OFFER to settle?

CdwJava · #5 09-27-2008, 02:03 PM

Quote:

Originally Posted by ecmst12

Why did your insurance even OFFER to settle?

Probably because it's cheaper than going to trial, and juries seem to lean towards the pedestrian. Perhaps this jury attitude is because there is a mistaken belief that pedestrians have the right of way (a common myth)?

I wonder if speed was a factor? If the moving vehicle was exceeding the speed limit, this seems to be a factor that can be presented to a court to try and shift blame from the pedestrian to the vehicle.

I know of an almost identical case here where the pedestrian was awarded more than $75,000 and the report indicated the fault rested entirely with the pedestrian, but the vehicle had been going 44 in a 25, though the plaintiff's attorney could not show that speed made a difference with regards to injury or impact. They settled out of court for the $75k.

- Carl

rainbow6 · #6 09-27-2008, 02:14 PM

No, I wasn't speeding - I was accelerating to go up to the light and I hit him at full impact(probably 25 mph) because I did not see him. I had no time to hit the brakes or swerve. I mean, I can understand if I was speeding-absolutely, but that was not even a factor-to be quite honest, there was not enough time to accelerate beyond that. You mean I have no rights-even if he is jaywalking at night, dodging in between cars and walks out in front of me? I just don't get that - and I do not have enough assets to pay anything! Would I go to jail if I could not pay(for something I feel was not even my fault?)?

ecmst12 · #7 09-27-2008, 02:17 PM

It was not your fault and your insurance company should be DEFENDING you, not offering to settle. So I ask again, why did they offer?

CdwJava · #8 09-27-2008, 02:19 PM

Quote:

Originally Posted by rainbow6

No, I wasn't speeding - I was accelerating to go up to the light and I hit him at full impact(probably 25 mph) because I did not see him. I had no time to hit the brakes or swerve. I mean, I can understand if I was speeding-absolutely, but that was not even a factor-to be quite honest, there was not enough time to accelerate beyond that. You mean I have no rights-even if he is jaywalking at night, dodging in between cars and walks out in front of me? I just don't get that - and I do not have enough assets to pay anything! Would I go to jail if I could not pay(for something I feel was not even my fault?)?

No, you cannot go to jail for this unless you have been charged with a crime. If the collision report puts him at fault, then you are in the clear in that regard.

Also, he was not "jaywalking" he was a pedestrian in a roadway and in a place where he should not have been, apparently.

Keep in mind that anyone can sue anyone else for anything at all ... they may not win, but they can try to sue. Many of these suits are simply seeking settlement money. In other words, the attorney threatens to sue in the hopes of a settlement that pays his fees and gives the client a little, too. This is (sadly) VERY common and one reason our costs are so high in this country. But, when the defendant (or his insurance company) looks at the cost of putting on a defense versus the cost of a settlement, it is often the more financially prudent position to pay the plaintiff off rather than go to trial. Trials cost money. Even when you WIN a trial, you can still spend many thousands of dollars in the process.

- Carl

rainbow6 · #9 09-27-2008, 02:57 PM

My insurance said the same thing...they tried to settle because they knew they would try to sue-I guess apparently due to medical bills and wanted to prevent going to court. I have not been served yet, but I know that it will happen. I am just dumbfounded that this could go to court - I am a grad student and do not have the money to spend on legal fees as well...so I am deeply worried. Anyway, I genuinely appreciate your counsel!

ecmst12 · #10 09-27-2008, 03:00 PM

A pedestrian crossing outside the crosswalk, that is the very definition of jaywalking.

If the guy sues, he's a moron, because he will lose. Your insurance company will provide for your defense if you are sued.

CdwJava · #11 09-27-2008, 03:21 PM

Quote:

Originally Posted by ecmst12

A pedestrian crossing outside the crosswalk, that is the very definition of jaywalking.

Not in CA. Yes, it is a matter of semantics, but the offense commonly referred to as "jaywalking" is CVC 21955:

21955. Between adjacent intersections controlled by traffic control
signal devices or by police officers, pedestrians shall not cross
the roadway at any place except in a crosswalk.

To "jaywalk" in CA you have to be crossing a street outside of a marked or unmarked crosswalk between two controlled intersections (i.e. two intersections with lights) ... this is nearly impossible in all bu tthe largest most congested cities. I worked in a city of 170,000 people that was 48 square miles in size ... we had three blocks where a person could jaywalk.

We commonly refer to 21955 as jaywalking, and 21954 as "pedestrian in a roadway."

21954. (a) Every pedestrian upon a roadway at any point other than
within a marked crosswalk or within an unmarked crosswalk at an
intersection shall yield the right-of-way to all vehicles upon the
roadway so near as to constitute an immediate hazard.
(b) The provisions of this section shall not relieve the driver of
a vehicle from the duty to exercise due care for the safety of any
pedestrian upon a roadway.

Yes, there may be a more common interpretation that covers EVERY crossing in a roadway, but we're particular about this here. Especially among law enforcement.

Quote:

If the guy sues, he's a moron, because he will lose. Your insurance company will provide for your defense if you are sued.

But, the insurance company may decide that paying $15,000 to make the matter go away is cheaper than going to trial. This is commonplace out here.

- Carl

ecmst12 · #12 09-27-2008, 05:20 PM

My company would never offer to settle if there was not at least a chance our insured was at fault. Legal fees for defending a suit go into a different expense category then paying out settlements or judgements.

CdwJava · #13 09-27-2008, 09:18 PM

Quote:

Originally Posted by ecmst12

My company would never offer to settle if there was not at least a chance our insured was at fault. Legal fees for defending a suit go into a different expense category then paying out settlements or judgements.

Interesting. I've seen them pay off out here under circumstances similar to the R/P, and I assumed it was a financial decision.

- Carl

rainbow6 · #14 09-29-2008, 11:34 AM

Once again, I appreciate you replying to my thread! Another question, I had planned to get married and I can’t even believe I have to worry about this with regard to that, but when I claimed my assets, I was not yet married, so if in the awful chance the plaintiff is rewarded damages, my spouse’s assets will be affected correct? And if/when(and not trying to be morbid, but realistic) I die and not all damages have been paid, would my spouse still be liable for these damages? I would hate to put off getting married, but I would also feel terrible in putting someone thru this! I would hope and pray that I don’t have to pay anything, but I am just trying to look at everything. It just makes no sense that I am being sued(or will-haven’t been served yet) because of a pedestrian darting thru traffic at night and not using a crosswalk – just simply crazy that I have to worry myself to death over this. Thank you again!

CdwJava · #15 09-29-2008, 11:51 AM

It's easy to make a claim. Harder to prevail at trial. Given the circumstances, if what you say is borne out by the facts, then I can't see an attorney suing you beyond what your insurance is willing to pay out.

What often happens is that a claim will be made in the hopes of a settlement offer. If no settlement, then the plaintiff will have to do a "gut check" and decide how lucky they feel. I'd say this is a loser for them to take to trial, but you never know.

- Carl