When a 3,000-pound car collides with a human being, it may seem like common sense that the human being should win the resulting injury case. After all, doesn’t the driver of the big, dangerous metal box have a greater responsibility to prevent death and injury while on the road?
Yet common sense isn’t always common when it comes to the law. Insurance companies aren’t in any hurry to pay out pedestrian claims. This is especially true of pedestrian claims that meet the severe injury threshold, because they tend to be even more expensive than the results of a vehicle-on-vehicle accident.
Who pays for pedestrian accidents in New York?
New York is a no-fault state. Even as a pedestrian, your injuries might not meet the so called severe injury threshold.
If you have your own automobile insurance, your PIP policy might well cover the loss. PIP covers lost wages and medical expenses up to the limits of your policy. If you don’t have a policy the driver’s no-fault policy will pay. If you were injured in a hit and run, the Motor Vehicle Accident Indemnification Corporation will pay.
If you don’t meet the severe injury threshold you can only file a claim. You cannot sue. You meet the severe injury threshold when:
- Your economic losses exceed $50,000
- You suffer a significant disfigurement
- Any part of your body is fractured
- You lose a fetus
- You permanently lose a bodily organ, member, function, or system
- You will face significant limitations on the use of a bodily function or system
- You lose a fetus
- You will be impaired from all of your customary daily activities for up to 90 days
- The pedestrian dies
When the serious injury threshold is met, the pedestrian may sue for pain and suffering damages, as well as full wage loss damages. If they died in the accident, their loved ones may seek damages in a wrongful death suit.
Obviously severe injuries in an accident between a pedestrian and a vehicle can be life-altering. Traumatic brain injury, paraplegia, quadriplegia, and other major injuries that will require lifelong care are often the result of such accidents. The insurance company can limit their costs by attempting to make a legal argument that a significant portion of the blame should be shifted onto the shoulders of the pedestrian.
Comparative Negligence in New York
Any injury victim may seek compensation for injuries in New York, even if they were partly responsible for the accident that caused them. A pedestrian may sue even if they are 99% at fault.
Unfortunately, there are diminishing returns for such suits. If you were found to be 99% at fault for your accident, you’d lose 99% of your award. That means you could be awarded $100,000 in damages only to take home $1,000.
It is in the immediate interests of the insurance company to get that percentage as high as possible to either discourage you from pursuing damages, or to limit their own losses should you press ahead anyway. You will need a personal injury lawyer to help you make the strongest possible case on your behalf, one that shows the driver of the vehicle was mostly at fault for injuries.
Why do pedestrians lose personal injury cases in New York?
Contrary to popular belief, pedestrians do not always have the right of way. This is true in New York City, and it’s true just about everywhere else, too. Pedestrians are required to obey traffic laws just like drivers are. If the insurance company can prove that you violated a traffic law and caused the accident, then you may be assigned a significant portion of the fault for the accident.
A pedestrian who suddenly steps off the curb when a car is near and doesn’t try to catch the driver’s eye while crossing might be found at least partially at fault. A pedestrian may also be found at fault if they crossed the street at night, wearing clothes that made it difficult to see, or if they were out walking on freeways or other roads where pedestrians are legally required to avoid.
Pedestrians may also receive a greater portion of the blame if they were texting while walking, or crossing while impaired by alcohol or drugs.
Fault isn’t the only reason pedestrians lose cases. Sometimes it’s difficult for them to provide proof of the truth. They may be unconscious and unable to gather evidence at the scene of the accident. This gives the driver an advantage. The only way to mitigate that advantage is to hire a personal injury attorney quickly, so that we can start securing evidence that can reconstruct, and prove, your side of the story.
Injured? We can help.
You have just three years to file a claim in New York City, and you’ll want to move faster than that if you want to maximize recovery in your pedestrian accident case.
We’ll evaluate your case for free and help you maximize your award. Contact us to get started today.