Investigators are still looking for clues after a speeding motorist struck and killed an 83-year-old man in upstate New York.
According to state police, an 83-year-old man was crossing at 8753 Route 11 in the town of Stockholm at around 5:30 p.m. when he was struck by a westbound vehicle driven by a 40-year-old Fort Covington man. The victim was rushed to a nearby hospital where he later died.
Frequently, the police accident report is the most critical bit of evidence in a car crash claim. However, the report is not always complete or accurate, especially in pedestrian wrongful death claims.
Large, multi-vehicle wrecks usually prompt large, multi-agency investigations. Usually, these law enforcement agencies work with accident reconstruction professionals who painstakingly re-create the accident to determine what happened. That's especially true if the agencies are building a criminal case, like a DUI vehicular manslaughter matter. Usually, none of these variables are present in pedestrian accidents.
In most cases, the pedestrian was the only victim. Vehicle-on-pedestrian collisions almost never injure vehicle occupants. Therefore, only a handful of emergency personnel usually responds to such calls. Instead of an extensive investigation, one responder must do his/her best to find out what happened. Additionally, responders usually don't write their reports for several hours or several days. So, they write based on memory and sketchy field notes.
A New York personal injury lawyer can shore up the investigative portion of a police report, mostly through electronic evidence. Surveillance camera footage is a good example. At least one camera covers pretty much every stretch of roadway in New York. This proof is very compelling in court. Most cameras record digital, high-definition footage. Furthermore, as the old saying goes, a picture is usually worth a thousand words.
However, there are some issues with such electronic evidence. Usually, the camera belongs to the city, a security company, a private business, or another third party. Therefore, attorneys usually need court orders to obtain this evidence. Furthermore, such evidence is only admissible in court in limited situations.
A report's narrative is often inaccurate in these situations. If the victim died or sustained a catastrophic injury, this part of the report only contains one side of the story. That's one of the main reasons authorities don't file charges even in fatal pedestrian accidents. Responder attitude is another reason. Frequently, these situations are civil matters, as far as authorities are concerned. They don't want to spend limited investigative resources looking into them.
So, even if a police report says you were at fault, always have an attorney evaluate your claim. A police officer doesn't have the final word in these situations. You don't know how much compensation you may be entitled to until you ask.
Most pedestrian accidents are like the one in the above story. The victim is outside a marked crosswalk, and the collision happens on the open road, instead of in an intersection.
Before we talk about liability in such cases, we should touch on vehicle speed. Velocity multiples the force in a collision between two objects. At 30mph, the pedestrian death rate in these accidents is less than 10 percent. The fatality rate skyrockets to 90 percent at impact speeds above 50mph. Since tortfeasors (negligent drivers) are usually travelling at or near top speed at the time of impact in open-road pedestrian accidents, the victim fatality rate is usually high.
These accidents usually involve the ordinary negligence doctrine. Basically, ordinary negligence is a lack of care. Most drivers have a duty of reasonable care.
In some ways, the duty of care is fixed. For example, driver experience doesn't affect the duty of care. Motorists who have been driving for fifteen minutes have the same responsibilities as motorists who have been driving for fifteen years.
In other ways, the duty of care varies. For example, when the weather is bad, the duty of care requires motorists to slow down and use extra caution. Furthermore, these drivers must also account for pedestrian risk factors. Usually, there are more pedestrians around during certain times of day. Additionally, if the road doesn't have a wide sidewalk, or any sidewalk, pedestrians are likely in the road.
Permanent crosswalk and virtual crosswalk accidents are different, from a liability perspective. If a victim is in a crosswalk with the light, motorists must yield the right of way. If the victim was in the crosswalk on yellow or even red, compensation may still be available, since the duty of care still applies.
A virtual crosswalk is a pedestrian-activated temporary crosswalk. When pedestrians push buttons, they activate flashing yellow lights that command motorists to stop.
If the pedestrian had the right-of-way, and an emergency responder issued a citation, the tortfeasor could be liable for damages as a matter of law, under the negligence per se rule. However, such accidents are few and far between. Additionally, as mentioned above, emergency responders often view such incidents as civil disputes. Therefore, they don't wrote tickets.
So, pretty much all pedestrian accidents, including crosswalk accidents, rely on the ordinary negligence doctrine. As a result, a full array of insurance company defenses is usually available. Comparative fault and sudden emergency are two of the biggest ones.
Comparative fault in a pedestrian accident claim is basically a failure to mind your surroundings. Even if they have the light, pedestrians cannot walk into traffic without stopping and looking both ways. The distracted walking defense is an offshoot of comparative fault. The insurance company argues that the victim was so engrossed in a device that s/he ignored everything else, including traffic conditions.
Legally, New York is a pure comparative fault state. Even if the victim was 99 percent responsible for a wreck, the tortfeasor is still liable for a proportionate share of damages.
The emergency doctrine is essentially an enhanced form of comparative fault. Tortfeasors are not financailly responsible for any portion of a wreck if they:
Frequently, insurance company lawyers argue that the victim ina non-crosswalk accident "darted out into traffic," so a collision was inevitable.
However, the emergency doctrine usually doesn't apply in these situations. Jaywalking pedestrians are not "sudden emergencies." Instead, they are everyday hazards, like stalled cars and large potholes. The aforementioned duty of care requires drivers to be ready for these hazards and respond appropriately to them.
Injury victims are often entitled to significant compensation. For a free consultation with an experienced personal injury attorney in New York, contact the Pianko Law Group, PLLC. You have a limited amount of time to act.