Pedestrian Auto Accidents

Palm Beach County Pedestrian Accident Attorney

Nobody expects to go for a walk or a run and get hit by a car, but it happens quite frequently. With fewer drivers paying attention, pedestrian deaths in the United States reached their highest level in almost 30 years during 2018. Florida defines a “pedestrian” as “any person afoot.” So Florida joggers and runners are “pedestrians” too.

When you’re walking for leisure, running, or even just crossing the street, you are trusting that the drivers around you are aware of their surroundings and being cautious. However, there are many instances of a careless driver hitting a pedestrian, inflicting tremendous—and often life-changing–personal injury, or even death.

In Florida, the risk of fatality on foot is significantly higher than in any other state. Nine of the 20 deadliest U.S. cities for pedestrians are in Florida, with Orlando ranked as least safe. The Miami-Fort Lauderdale-West Palm Beach metropolis ranked No. 14 in the 2019 “Dangerous By Design” report from Smart Growth America and the National Complete Streets Coalition. Our streets are, all too often, killing fields for pedestrians.

Death rates are disproportionately high for the elderly, minorities and people walking in poor communities, data showed. In cities, pedestrian accidents do not happen most often in intersections, like one might assume. Rather  pedestrian accidents tend to happen on sidewalks, in crosswalks, or on the side of the road. Older adults are more often struck at an intersection or in a crosswalk than younger victims. In Florida, pedestrian accidents happen more frequently at night (visibility is always a factor), and in cities more often than in rural areas. Higher vehicle speeds increase both the likelihood of a pedestrian being struck by a car, and the severity of injury.

Several factors may be behind the rise in pedestrian deaths.

• Americans are walking and running for exercise more, increasing their risk of being hit by a vehicle;
• Unsafe behaviors behind the wheel such as:
  • Speeding;
  • Distracted driving, including texting and other cellphone use;
  • Drowsy driving;
  • Alcohol impairment by the driver and/or pedestrian;
  • Pedestrian deaths in crashes involving sport utility vehicles;
  • The increased number sport utility vehicles (SUVs), which are more likely than a sedan to cause severe injuries or death   

Rights and Responsibilities of Drivers, Under Florida Law

• Florida law requires every vehicle to exercise due care to avoid colliding with any pedestrian. The law also requires drivers to give warning when necessary, and exercise proper precaution upon observing any child or any obviously confused or incapacitated person. Therefore, the law requires drivers to honk their horns when necessary (to alert a pedestrian to danger) and to do what they can to avoid pedestrian collisions;
• Drivers must comply with any traffic control device, such as a stoplight or a stop sign;
• Drivers must abide by speed limits set by official signage;
• Drivers must not drive at a speed unsafe for the conditions, including, but not limited to time of day, angle of the sun, weather, condition of the road, any curves in the road, approaching a railway crossing, etc.
• A driver may proceed through the intersection when the stoplight turns green. However, drivers must yield to other vehicles and pedestrians lawfully in the intersection or crosswalk, including vehicles turning left or right;
• Unless signs indicate otherwise or it is accompanied by a green arrow, when the light turns green, pedestrians may proceed using a marked or unmarked crosswalk;
• Drivers at a red light may turn right, unless there is a sign prohibiting such a turn;
• Drivers should always check for a “No Turn on Red” sign. Some “No Turn on Red Signs” always apply; some are limited based on the time of day;
• Drivers must treat a flashing red signal as a stop sign;
• Drivers seeing a flashing yellow signal must use caution when proceeding through an intersection;
• Drivers must yield the right of way to pedestrian highway workers;
• Drivers have an additional duty of care to watch out for children near schools, playgrounds and other areas where children tend to congregate;
• Drivers also have an additional duty of care to watch out for those who are incapacitated. “Incapacitated” includes elderly pedestrians who are wheelchair-bound, and even those who are obviously under the influence of drugs or alcohol.

Failure to Follow These Safe Driving Practices May Be Evidence Of l Driver Negligence

The American Automobile Association (“AAA”) recommends the following safe driving practices, some of which are set forth in Florida law. Failing to do these things may constitute driver negligence, making the driver liable, or partially liable, for a resulting accident:

• Keep your eyes on the road and staying alert to your surroundings;
• Follow the posted speed limits, especially in heavy pedestrian-traveled areas. This is very important in school zones and neighborhoods, as children may appear suddenly;
• Use extra precautions in bad weather conditions or poorly lit areas. It may be difficult for drivers to see oncoming pedestrians in these conditions, but it is also hard for pedestrians to see drivers. Make sure your lights are on and using your signals;
• Yield to pedestrians in a crosswalk;
• Reduce speed when approaching crosswalks, even if there are no pedestrians initially in sight;
• When stopped at a crosswalk, allow enough room between your car and the crosswalk, so other drivers can see the pedestrians you have stopped for, and so there is enough room for pedestrians to cross;
• Don’t pass vehicles stopped at a crosswalk;
• Avoid distractions, such as electronic devices that take your attention off the road;
• Don’t drive a vehicle under the influence of drugs or alcohol, as it can impair your judgment.

Rights and Responsibilities of a Florida Driver in an Accident

• Any driver involved in an accident involving property damage or serious injury must stop immediately and remain at the scene;
• The driver is required to render aid, where appropriate, and exchange information with the other party. Required information includes the driver’s name, address, and the registration number of the driver’s vehicle. The driver must show the other parties involved, and police officers, his/her driver license, upon request;
• A driver involved in an accident needs to avoid blocking traffic, moving his or her car if necessary.
• In cases involving personal injury or death, the driver needs to contact the police as soon as possible and report the accident.

When Does A Florida Driver Face Criminal Liability For Hitting A Pedestrian?

In addition to civil liability, a driver may face criminal charges if he/she committed any of the following offenses:

• Leaving the scene of the accident;
• Driving while intoxicated;
• Reckless Driving (willful or wanton/careless disregard for the safety of persons or property)

Rights and Responsibilities of Pedestrians, Under  Florida Law

• Pedestrians must obey all traffic signals, signs, and devices;
• Pedestrians at a red light are not supposed to enter the roadway unless a pedestrian light indicates they may;
• If a roadway has a sidewalk, the law requires pedestrians to use it. Pedestrians are not allowed to walk or run on the roadway if a sidewalk is available. When there is no sidewalk available, pedestrians are allowed to walk or run on the left shoulder of the roadway where the pedestrian is traveling, facing oncoming traffic.
• Pedestrians have the right of way on sidewalks. Drivers emerging from— or entering– an alley, driveway, private road, or building that has a sidewalk extended across the entrance, must yield to pedestrians. For example, if a pedestrian is walking on a sidewalk through a neighborhood that crosses driveways, then vehicles entering or exiting those driveways must yield to the pedestrian;
• Pedestrians have the right of way within a marked crosswalk, and within a marked crosswalk at an intersection. Drivers must yield the right of way to any pedestrians in a marked or unmarked crosswalk. However, pedestrians cannot enter crosswalks when doing so would constitute an immediate hazard. For example, if a car is practically on top of the crosswalk then that is not a safe time to cross the street;
• Where there is no traffic control device, such as a stop sign or a traffic light, a driver is required to yield the right-of-way to a pedestrian in a crosswalk;
• Pedestrians are not permitted to leave the curb until a traffic signal tells him/her to;
• Pedestrians must not make sudden moves off of the curb, even into a crosswalk, when a driver will not have time to come to a safe stop;
• Pedestrians must keep to the right half of a crosswalk;
• Pedestrians who are crossing the street anywhere other than a marked crosswalk must yield the right-of way to drivers on the roadway;
• Pedestrians must cross the street at a right angle from the curb;
• Pedestrians may not legally cross an intersection diagonally, unless authorized by official traffic control devices.

The Centers for Disease Control and Prevention recommends that pedestrians follow these safe practices, in order to avoid being hit by a vehicle. Some of these practices are required by Florida law. Failing to do these things may constitute pedestrian negligence, making the pedestrian liable, or partially liable, for a resulting accident:

• Cross the street at designated crosswalks or intersections. Make sure that you use crossing signals, and paying attention to when the signals tell you to walk or not walk;
• Don’t jaywalk (crossing the street, not at a designated crosswalk.) If you must cross the street, not at a crosswalk, YOU must wait for traffic to pass before crossing the street;
• Don’t wear dark clothes at night when walking/running. Increasing your visibility at night by a carrying a flashlight, or wearing reflective clothing;
• Cross the street and walking/running in well-lit areas;
• If possible, make eye contact or hand-signaling drivers in stopped vehicles, to ensure they see you, before you cross in front of them;
• Avoid distractions, such as looking at your phone, when walking or crossing a street;
• Be aware of your surroundings;
• Walk on a sidewalk, instead of the roadway. If there is no sidewalk, walking on the shoulder, facing oncoming traffic. It is against the law to walk on interstate highways;
• Don’t assume —ever— that a driver will give you the right of way;
• Make an effort, before crossing the street, to make eye contact with the driver of the vehicle you’re crossing in front of;
• Don’t drink alcohol if you’re planning to walk or run, since alcohol can impair your judgment;
• Wear bright clothing, reflective strips, or headlamps, at night, allowing you to be more visible to drivers

Common Injuries Suffered By Pedestrians Hit by Vehicles

A vehicle is an enormous piece of steel, and the pedestrian is unprotected by a vehicle or protective armor. With no protection from the impact, a pedestrian hit by a vehicle will likely suffer devastating injuries, including:

• Brain Injuries;
• Spinal Cord Injuries;
• Fractures;
• Lacerations;
• Paralysis;
• Loss of Limbs

What You Should (Try To) Do If You Are A Pedestrian Hit By A Vehicle

A pedestrian injured in a car accident may be too seriously injured to do much—if anything—to help himself/herself. If, able to, though, he/she should do the following:

• After being hit by a car, check yourself first. If you can safely do so, get out of the street and onto the sidewalk;
• If it’s a hit and run, the driver will take off. Do your best to mentally record the make, model, and license plate number of the vehicle;
• If you are injured—and most people hit by a car will be at least minimally injured—you’ll need to call 911 for medical attention. You may be suffering internal injuries and you should get them checked out in a hospital. 911 will dispatch an ambulance and the police. A formal police report will serve to document what occurred, what was said, who was at fault, injuries complained of or clearly visible, etc.  The report will provide important information, such as the name of the driver and witnesses, driver license information, insurance information, description of the roadway, citations issued, etc. While the details may be fresh in mind shortly after an accident, those details tend to fade from memory over time. Insurance companies evaluating damage and injury claims always request a police report, which they use in evaluating who is at fault and whether to pay. For all of these reasons, it is important to call the police right after the accident occurred.
• If you are able, look for eyewitnesses and get their contact information. One of the main issues you may encounter is that the driver will say that he/she had the right of way, and that you crossed at a “no walk sign” or a “red light.” You may need to prove in court that you were in the right. Eyewitnesses may help in this regard.
• You or your family member should promptly report the accident to the insurance companies involved (the driver’s and, yes, your own auto insurance company, even if you were a pedestrian). However, only give the basic facts. Sometime after that, you will receive a telephone call from one or more insurance adjusters, requesting that you give a statement about the accident. Do not do it until you have consulted with a personal injury attorney. Call the Law Offices of Andrea D. McMillan.  You may not be legally obligated to give the statement, depending upon which insurance company is seeking it. We will advise you if you are obligated to give it. If you are obligated to give a statement, then   let us explain to you, what the insurance company hopes to accomplish in taking the statement from you. Insurance companies–even your own– have an interest in paying out nothing or as little as possible to injured people. Don’t damage your case by giving the insurance company a statement harmful to you, or by signing an insurance document that harms you. It is best to have an experienced personal injury lawyer like Andrea McMillan explain to you how insurance companies operate, and what’s really going on. Andrea McMillan will prepare you to give a statement, review documents presented to you for signature, and help you every other step of the way. Call the Law Offices of Andrea McMillan at (561) 612-5700.

We Will Gather Other Available Evidence To Help Your Case

While you concentrate on your healing and recovery, we will handle your legal case. We will gather all the evidence we can, in order to determine how the accident occurred, and to assist you with your case. For example, we will investigate whether video footage of the scene is available from traffic cameras or other cameras. We may also be able to check the driver’s cellphone data to determine whether the driver was distracted at the time of the accident.

Why You or Your Family Member Needs to Report The Accident To All Involved Auto Insurance Companies, Including Your Own, Even Though You Weren’t In A Vehicle When You Were Hit

The Florida Motor Vehicle No-Fault Law Requires That You Report The  Pedestrian Accident, In Order to Collect No-Fault (“PIP”) Benefits

A pedestrian injured in an auto accident should immediately report it to all involved auto insurance companies.  This includes his/her auto insurance company, in order to be eligible to collect Florida’s Motor Vehicle “No Fault” (“PIP’) benefits. This is because a person’s PIP insurance coverage travels with him/her, meaning that it will cover injuries and losses stemming from that person’s pedestrian accident. However, Florida PIP law has certain specific requirements that must be met, including important deadlines. Palm Beach County pedestrian accident lawyer, Andrea McMillan, will make sure you meet those deadlines.  PIP benefits are available regardless of who is at fault for the accident.

How Much PIP Is Available, and What Will It Pay For?

Most people carry $10,000 in PIP coverage, which is what the State of Florida requires. Some people, though not many, choose to carry more.  Many pedestrians suffer very serious physical injuries and losses, such as:

• Past and future medical bills and treatment costs;
• Lost income/wages;
• Past and future medical bills and treatment costs;
• Lost income/lost wages;
• Pain and suffering damages;
• Emotional distress damages

Unfortunately, PIP usually only covers a limited amount of damages. Nonetheless, the injured person should promptly seek PIP benefits.

PIP will pay:

• 80% of reasonable medical expenses including doctor visits, surgery, X-rays, dental, rehabilitative services, and medically necessary ambulance, hospital, and nursing services;
• 60% of lost wages;
• Replacement services like babysitting or lawn care, that the pedestrian may be unable to no longer do because of his/her injuries

What If An injured Pedestrian Has No Auto Insurance?

In the event an injured pedestrian does not have a vehicle or auto insurance, if there is a relative in the injured pedestrian’s household who has an auto insurance policy, then the injured pedestrian may apply for PIP benefits under that person’s policy.

The Critical 14-day Requirement For Obtaining Accident-Related Treatment, Under Florida PIP Law

To be eligible to receive PIP benefits, a pedestrian accident victim must receive treatment for his/her accident-related injuries from an authorized healthcare provider within 14 days after the accident. Receiving treatment within that 14-day window makes the injured pedestrian eligible to receive at least $2,500 in PIP benefits.  Failure to treat within 14 days means forfeiture of PIP benefits.

The following healthcare are deemed “authorized” to treat accident victims within the 14-day window, under Florida PIP law:

• Medical Doctors
• Doctors of Osteopathic Medicine;
• Chiropractors;
• Hospitals;
• Medical Emergency Personnel (including EMT’s and Paramedics)

To Be Eligible for The Full Amount of PIP Benefits, An Injured Pedestrian Must Suffer From An “Emergency Medical Condition,” As Defined In Florida PIP Law

To qualify for PIP benefits greater than $2,500, a qualified healthcare provider must determine and notate that the injured pedestrian suffered an “Emergency Medical Condition (EMC),” as a result of the accident.  Sadly, because of the devastating impact that most pedestrians suffer when hit by a vehicle, the issue of whether the pedestrian suffered an “Emergency Medical Condition” is almost a foregone conclusion.

What is an “emergency medical condition”?  Section 627.732, Florida Statutes, defines it as a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention would reasonably be expected to result in any of the following:

1. Serious jeopardy to patient health
2. Serious impairment of bodily function
3. Serious dysfunction of any bodily organ or part

Florida PIP law does not specify when an emergency medical condition should be established. Therefore, an EMC does not have to be declared within the 14-day window.

Who Is Qualified to Determine if You Have an EMC?

The medical provider making this call must be a:

• Qualified physician;
• Osteopathic Physician;
• Dentist;
• Physician’s Assistant;
• Advanced Registered Nurse Practitioner.

The Bottom Line Is That You Should Hire An Experienced Pedestrian Accident Lawyer To Assist You!

The myriad rules and requirements of Florida’s No-Fault Insurance system are complex, and can be very confusing for crash victims. As a result, crash victims can be denied benefits simply because they did not know or understand the rules, deadlines, and technical requirements.

It is essential to contact an experienced Palm Beach County pedestrian  accident attorney after being involved in a pedestrian crash caused by someone else. Time is not on your side. If you miss the 14-day deadline, you may permanently forfeit your legal rights to valuable, medical, wage, and expense benefits available under Florida’s no-fault system.

Other Insurance Coverages Available to An Injured Pedestrian

Property Damage Liability Coverage

In addition to seeking PIP benefits, a pedestrian injured by an at-fault may be able to pursue the driver’s property damage liability (PDL) insurance. That coverage will pay for the pedestrian’s property damaged in the accident, such as a cellphone.

Medical Payments Coverage (“Med Pay”)

Medical Payments coverage is optional, so it will be available only if it was purchased. Med Pay covers reasonable medical expenses and funeral expenses not covered by Personal Injury Protection (“PIP”). Some people purchase Med Pay coverage to pay the 20 percent of medical expenses not covered under PIP, or to pay a PIP deductible, if one was chosen.  

Who Does Med Pay Cover?

Med Pay coverage applies to:

• The named insured person;
• Resident relatives of the named insured person; and
• Passengers in the insured vehicle

Med Pay coverage follows:

• The named insured person; and
• The named insured person’s resident relatives
  • While in any car; or
  • As a pedestrian or bicyclist.

Bodily Injury Coverage

An injured pedestrian may also be able to recover from the at-fault driver’s bodily injury coverage if certain requirements are met.  In order to do so, the pedestrian must prove that the driver was negligent, and that the negligence caused the pedestrian’s injuries.  In addition, the injured pedestrian must have suffered a serious, permanent injury, such as:

• Significant scarring;
• Disfigurement; or
• Loss of a bodily function;

In the event where a loved one died as a result of the pedestrian accident, surviving family members may file a claim or lawsuit for wrongful death.

Uninsured, Underinsured Motorist Coverage (“UM”)

Another potential source of coverage for an injured pedestrian is Uninsured/ Underinsured Motorist coverage, collectively referred to as (“UM”). UM coverage is not mandatory in Florida, so not everyone carries it. However, it is extremely valuable coverage to have.

UM coverage applies when:

• an at-fault motorist has no liability (bodily injury) insurance; or
• an at-fault motorist has insufficient liability (bodily injury) insurance; or
• in a hit-and-run accident or other situation where the at-fault driver cannot be identified.

The most common scenario is for UM to pay the insured person for injuries sustained as a result of a negligent driver who lacks bodily injury coverage, or has bodily injury coverage insufficient to cover the injured person’s losses.

Who Does UM Cover?

In addition to the policy holder, standard UM policies generally cover the spouse and any relatives who live with the policyholder. UM coverage also typically extends to passengers of the automobile at the time of the accident.

UM insurance follows the insured individuals, not the vehicle. This means UM covers all insureds, whether they are riding in your car, riding in another person’s car, or are pedestrians, or cyclists. UM also covers insureds in a hit-and run accident.

What Does UM Cover?

UM Insurance pays for medical bills and income loss, beyond what PIP covered. It also pays for pain and suffering, bodily injury, sickness, disease or death resulting from a motor vehicle accident that you and/or your passengers and family members sustain.

All insurance companies are required to offer UM insurance coverage to consumers, as part of their product line. Florida drivers are required to sign a statement declining UM coverage to show they elected not to include UM coverage in their policy.

What Happens If The At-Fault Driver Does Not Have Bodily Injury (“BI”) Coverage, And You Do Not Have Uninsured/Underinsured Motorist (“UM/UIM”) Coverage?

If you do not have UM, and the other driver has no bodily injury insurance, no matter how badly you are injured, you will not be able to recover anything from an insurance company, other than the initial PIP coverage for medical expenses and lost wages — i.e., no pain and suffering, emotional damages, loss of quality of life and other non-economic damages. In that situation, you have the right to seek a judgment against the at-fault driver for damages you have suffered due to their negligence. This means going after the responsible party’s personal assets, if there are any such collectible assets.

What if I’m Partly Responsible for the Pedestrian  Accident?

The opposing side in your pedestrian accident case may claim that you are partly responsible for your injuries. Pedestrians have a duty to use reasonable care on the road to ensure their own safety and that of others. If, for example, a pedestrian ignores a traffic signal or sign, and is then hit by a vehicle, the driver could argue that the pedestrian is comparatively negligent (partly at fault).

Comparative negligence, however, does not prevent a pedestrian accident victim from recovering damages. Florida allows an accident victim to seek compensation for his/her even if the accident victim was partially at fault. This means you will still be able to recover damages. However, the amount of money you can recover will be reduced in proportion to your degree of fault (by a percentage). For example, this means that if you were found to be 30% at fault for causing your pedestrian accident, then your damage award would be reduced by 30%. This would be defined as your proportion of fault, or “comparative negligence.”

Contact Palm Beach County Pedestrian Accident Firm, Law Offices of Andrea McMillan, for Help

Unfortunately, handling the legal issues after you have been involved in a pedestrian accident can be stressful. The experienced and dedicated Law Offices of Andrea McMillan will work hard to help you put the pieces of your life back together. We understand, first-hand, the devastating impact that injuries can have on you and your family. We “get” the physical harm, the pain, the suffering, and the psychological and emotional trauma that you are undergoing.   We understand the medical bills, lost wages, and the many other troubles caused by your accident. In the event of a death, there may be a loss of financial support or services.

While you focus on your healing, we will be there for you, and will work hard to recover maximum financial compensation for the injuries and other losses you have suffered. All consultations are free. Contact the pedestrian accident Law Offices of Andrea McMillan today at (561) 612-5700. We will give you the peace of mind you need.