I Was Hit By a Car, Do I Have a Case for my Injury?
I Got Hit By a Car While Crossing the Street, Do I Have a Case?
Atlanta was not laid out with pedestrians in mind and our lawyers get a lot of calls about people being hit by cars. There are numerous streets without sidewalks and areas where it is over 1,000 yards to a crosswalk. Tara Boulevard and Buford Highway are two of the most common areas for pedestrian rundowns. The City has worked hard over the last few years to improve Buford Highway but people are still run over on Tara Boulevard at an alarming rate. We have sadly also had an increase in college student getting run over while crossing the street on Georgia Tech and Georgia State’s campus.
We know streets can be dangerous, when is it the car’s fault and when is it my fault?
One of the biggest problems for victims is that the investigating police officer is often heavily biased against the pedestrian unless they were crossing the street in a crosswalk or unless there is an eyewitness that claims the driver was speeding. Cops almost always blame the person crossing the street and this just is not fair.
One example involves a pedestrian hit and killed by a car in Clayton County in late 2012. She was crossing the street from a convenience store to her house. The officer blamed the pedestrian despite the fact the Defendant admitted they had been drinking earlier. The officer concluded from the sobriety tests that the driver was not too drunk to drive! Tell that to the family of the deceased. So how do you fight that?
We interviewed the eyewitness and she confirmed that she overheard the officer stating “that will teach her not to cross outside of the crosswalk!”
It is frustrating, but remember that most traffic cops are not trained in advanced accident reconstruction. They are giving a superficial opinion and that is it. It takes a lawyer to provide a deeper analysis.
So What is the Law When You Get Hit By a Car?
The rights of the pedestrian are laid out in the Official Georgia Code. Under O.C.G.A. § 40-6-93 “every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, shall give warning by sounding his horn when necessary, and shall exercise proper precautions upon observing any child or any obviously confused, incapacitated, or intoxicated person.”
O.C.G.A. § 40-6-92 governs jaywalking and pedestrian crossings. Under section (a), every pedestrian crossing the street (crosswalk or not) shall yield the right of way to all vehicles unless he has already safely entered the road already. That means that if you are already a pretty good way into the road and a car is coming along, they have to yield to you.
Under section (c) if you cross the road between adjacent intersections at which traffic-control signals are in operation and you do not use the crosswalk, you are jaywalking and in violation of the law. Let’s make this simple; it’s not jaywalking unless you are in between two traffic lights! Stop signs don’t count.
In the civil setting (lawsuits for money compensation), you can be charged with negligence per se which may make recovery for serious injuries more challenging. Understand though that the key here is you must be between adjacent traffic light controlled intersections for the rule to apply.
Another little known caveat (an exception to the rule) is that a pedestrian may cross at any intersection if they stay within an imaginary line that would be drawn between the sidewalk on either side of the road. The lack of painted crosswalk lines does not mean the pedestrian is doing something illegal.
OCGA 40-1-1 states in the definition of crosswalk:
“(A) That part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or in the absence of curbs, from the edges of the traversable roadway;”
In every case where a pedestrian has been hit by a car, securing eyewitness testimony is critical. The lawyer also needs to investigate the lighting conditions, conspicuity of clothing, the familiarity of the driver with the pedestrian traffic patterns in the area.
Pedestrian injury cases in Georgia are a complex subcategory of injury law and if you have further questions, please telephone our law office.
Questions From Our Readers and Case Conclusions From Around Georgia
Caller: my daughter was killed by a hit and run driver in June in Fulton County. She was visiting her father for summer vacation. He left her in the care of his sister in law, and she was left outside with another child age 9. My daughter was 5.
Do I have a case?
Further conversations revealed that the 5-year-old had been left in the care of an adult friend of the father. The family had hired an Atlanta law firm and that firm had obtained the $25,000 uninsured motorist coverage on the Mother for the death of the child. What the firm did not do is investigate whether there was any other Uninsured Motorist coverage for the death of the child through the father as well because, under Georgia law, children can have dual residency. The final piece to the puzzle is investigating whether the caretaker had homeowner’s insurance which would provide coverage for the failure to supervise the child in a safe manner. Putting it bluntly, who in their right mind leaves a five-year-old in the front yard in the care of a 9-year-old with a busy street nearby?
Man in Black at Night is a Plaintiff Jury’s Don’t Like
Day v. McLaughlin, 11/14 Hall County
Cruser and Mitchell did a nice job defending a case against a badly hurt plaintiff with $140,000 in medical specials. They offered only $25,000 on a disputed liability stance and the jury gave a defense verdict based on eyewitness testimony that the crossing light lasted only 30 seconds and their belief that by the time the ped got to the other end of the crosswalk.
Now, these cases are winnable but it requires help from an eyewitness, skid marks, ECM download or some other piece of evidence on the plaintiff’s side and it does not look like they had that.
Adams v. Fayette Mower, 11/15 Fayette County
A daylight incident where a work truck ran down a pedestrian ended in no verdict for the plaintiff and sheds an interesting light on how juries think. The pedestrian was hit and killed in broad daylight. The jury decided that blame rested equally on the victim and the driver and in Georgia, a 50/50 responsibility split means the plaintiff gets nothing. The jury was interviewed afterward and said that it mattered to them that the person representing the plaintiff was the brother. They implied that had the decedent been supporting a wife and children, they might have evaluated the case differently.
Favors v. Cloud, October 2012, Trial Fulton County
Favors was crossing a busy road at night outside of the crosswalk on Campbellton Road. Favors had made it across three lanes and was struck in the fourth lane by the Defendant. He had $140,000 in medical bills from lacerations and a shoulder replacement surgery. The jury did put 49% of the blame on the pedestrian for being out of the crosswalk and in the dark but still awarded $225,000 to him, reduced to $114,000 by the comparative negligence. Remember that anytime the jury finds the plaintiff had a degree of negligence, that will reduce the verdict up to 50%. At 50/50, there is no award.
Seo v. Glenn, Trial Clarke County
Pedestrian is hit while walking in the parking lot in the dark and in the rain. She had $15,000 in medical bills for soft tissue medical care. She had some very good lawyers for counsel, with whom I am friends, and the jury still found for the defense. Nighttime, rainy weather disputed liability pedestrian cases are very, very tough to win. It takes some good facts or cross-examination to prevail.