Distracted Walking and Comparative Negligence: How Fault May Be Shared

Walking around neighborhoods, communities, and hiking trails has always been a popular activity for many individuals and their families. This is a great way to get outside and spend time together, especially in the warmer months. 

Pedestrian accidents are usually associated with negligent drivers. However, that is not always the case. Often, pedestrians may not follow the necessary safety steps to ensure they are not putting themselves in harm's way. Understanding distracted walking accidents and your legal considerations is crucial to ensuring your future safety and well-being. 

What Is Distracted Walking?

Smartphones are one of the most common sources of distraction, but they are not the only one. Examples of distracted walking may include, but are not limited to, the following. 

• Texting or reading messages while crossing a street
• Looking at social media or other content on a phone
• Watching a video while walking
• Wearing headphones that limit awareness of surrounding traffic
• Talking on the phone while entering an intersection
• Looking at a navigation app instead of surrounding conditions
• Engaging in a conversation and failing to notice traffic signals

Distraction alone does not automatically make a pedestrian legally responsible for an accident. The important question is whether the pedestrian's behavior contributed to the circumstances that caused the injury.

Drivers Still Have Responsibilities Toward Pedestrians

Drivers must remain attentive to traffic conditions and watch for pedestrians, especially around crosswalks, intersections, schools, shopping areas, and other places where pedestrians are reasonably expected to be present.

Depending on the circumstances, potentially negligent driver conduct may include speeding, distracted driving, failing to yield when required, making an unsafe turn, running a traffic signal, or driving while impaired.

For example, a pedestrian may have been looking at a phone while entering a crosswalk, while the driver may also have been speeding or failing to pay attention. In this type of situation, an investigation may examine the behaviors of both individuals rather than automatically assigning all responsibility to one person.

How Comparative Negligence Works in California

California uses a pure comparative negligence approach to personal injury claims. This ultimately means that more than one party may be assigned a percentage of responsibility for an accident. A person's potential recovery may then be reduced according to the percentage of fault attributed to that person.

Comparative negligence is especially relevant in pedestrian cases because insurers may argue that a pedestrian failed to exercise reasonable care even when a driver's conduct also contributed to the collision.

Evidence That May Affect a Comparative Negligence Claim

Since responsibility may be disputed, evidence can play an important role in determining how an accident occurred and who is to be held liable for injuries. Relevant evidence may include the following. 

• Surveillance footage 
• Dashcam recordings 
• Photographs
• Videos
• Police reports 
• Traffic signal information
• Vehicle information
• Vehicle damage
• Medical documentation 
• Other electronic records 

In addition, the pedestrian's location at the time of the accident can also be significant. Whether the pedestrian was inside a marked or unmarked crosswalk, walking along a roadway, crossing outside an intersection, or entering a parking lot traffic lane may affect the liability analysis.

Insurance Companies May Raise Distracted Walking as a Defense

After a pedestrian accident, an insurance company may investigate whether the injured person was distracted. An adjuster might ask whether the pedestrian was texting, wearing headphones, looking at a GPS application, or otherwise not paying attention.

These questions can be significant because an insurance provider may argue that the pedestrian should be held responsible for some percentage of the accident. As a result, pedestrians should provide truthful information about what happened. However, it may be helpful to understand the purpose of requests for statements, authorizations, or other information before responding. Statements made shortly after an accident may later become part of a liability dispute.

Common Injuries in Pedestrian Accidents

Pedestrians have little physical protection when struck by a motor vehicle. As a result, pedestrian accidents may cause injuries requiring significant medical care and treatment. Possible injuries may include but are not limited to the following. 

• Fractures
• Head injuries 
• Traumatic brain injuries
• Spinal cord injuries 
• Internal injuries 
• Soft-tissue injuries
• Cuts and lacerations 

The nature and extent of injuries may vary significantly from one case to another. In addition, medical records and other documentation may be relevant when evaluating the damages associated with a claim.

Potential Damages in a Pedestrian Accident Claim

Depending on the circumstances, an injured pedestrian may seek compensation and support for legal damages associated with the accident. These may include past and future medical expenses, lost income, reduced earning capacity, pain and suffering, and other losses permitted under California law.

The amount of recoverable damages often depends on factors such as liability, insurance coverage, the severity of the injuries, medical evidence, and the specific facts of the case. Comparative negligence may affect the amount ultimately recoverable if the pedestrian is found partially responsible.

Legal Guidance After a Distracted Walking Accident

It may be important to seek legal guidance and support after a pedestrian accident near or around your neighborhood. These types of accidents are more common than many people think and can result in severe or sometimes life-threatening injuries for individuals and their families. A legal professional may be able to explain applicable laws, review the specific facts of your case, and speak to insurance companies on your behalf. This may be beneficial during a difficult time such as a pedestrian accident.

How KAASS LAW Can Help

Pedestrian accidents may involve multiple parties, challenging legal considerations, and various pieces of evidence. The personal injury attorneys of KAASS LAW are ready to help you understand your rights and the importance of maintaining evidence and documentation throughout your case. Our personal injury attorneys can help determine potentially liable parties, speak to insurance companies, and help you navigate the legal process moving forward. Call KAASS LAW today for a confidential consultation and to learn more about your case.