In early March 2019, a 62-year old Worcester man was struck and killed while crossing the street at St. Nicholas Avenue around 6:00 am. The driver was a 26-year old male from Webster who was proceeding south on St. Nicholas and hit the man who was crossing from the driver’s left.
Reports of the accident were unclear as to whether the pedestrian was in a crosswalk, if there was lighting at the location of the accident, or as to what caused the motorist to not see the pedestrian before the accident. Because there were no eyewitnesses, police and accident reconstruction experts will have to examine the accident scene, see what the weather and street conditions were like at the time, and question the driver as to his speed and conduct in the moments preceding the accident. In many cases like this, the driver will allege that the pedestrian ran into the street or suddenly appeared between parked vehicles, or that his vision was obscured by the weather. His account of why he struck the pedestrian will have to be gauged in light of whatever evidence is available.
In many instances where a pedestrian is struck and killed by a vehicle, the motorist is found at-fault. Although a pedestrian, like any other person, has a duty to exercise reasonable or ordinary care to keep safe, a pedestrian under Massachusetts law while crossing in a crosswalk or in an intersection with the green “walk” light on, has the right of way.
Even if the unfortunate pedestrian was not in a marked crosswalk, the driver still must yield. But if the victim was in a part of town where he was only permitted to cross at the intersection, corner or marked crosswalk, his failure to do so could mean that he was comparatively at fault.
Pedestrian accidents occur in nearly any situation where cars can be found. They usually occur at:
- Parking lots
- Freeway shoulders
- Driveways—cars backing up
- Unlit roadways
As a pedestrian, consider these safety suggestions:
- If there is a marked crosswalk, you should always use it when crossing.
- If you decide to cross at mid-roadway, be especially cautious and wait for all traffic to clear.
- Never cross a freeway. Call for help or wait for police. If an emergency and you have no phone, try to flag down a vehicle. Crossing a freeway is especially hazardous and you may find it difficult to impose liability on a motorist who had no reason to have expected to see you, unless other circumstances were present.
- At night or in poor weather, consider wearing bright clothing especially in rural areas where there is little or no street lighting
Pedestrian accidents do happen on the shoulders of roads where motorists are changing a tire or are outside the vehicle for some other reason. If the pedestrian was outside the car but off the roadway on the shoulder and was struck by a passing motorist, there can be liability on the motorist.
Parking lots are notorious for accidents. Motorists drive too fast, do not signal, fail to stop at stop signs within the lot, and do not yield to pedestrians. A parking lot is not a public roadway, which may mean that not all traffic laws are applicable, but drivers still have a duty to exercise caution since they are aware that there are people walking to and from their vehicles.
Liability if Not in a Crosswalk
In the Worcester fatal accident, we might assume that the victim was not in a crosswalk when struck. Unless the driver admitted to being inattentive, was on his cellphone, or was found to be impaired, it might be difficult to impose liability on the driver for purposes of a wrongful death claim unless there was no marked crosswalk nearby and the victim had little choice but to cross there.
If the driver claimed the man ran into the roadway, a Worcester car accident lawyer could determine whether the man was physically unable to run due to bad knees or some other physical condition, was wearing heavy boots, or there was ice and snow on the street. The area of impact on the roadway is vital since if he was struck in the middle of the street, then his presence should have been open and obvious to a reasonably cautious driver. If the victim emerged between parked cars and was struck just a few feet from them, liability would likely rest on the victim alone.
There are other considerations such as whether the driver was fatigued, was drinking coffee in his car, or was using his smartphone when the accident occurred. Police likely checked the driver’s demeanor and may have examined his cellphone to see if he was texting or on a call. If it was still dark out since sunrise was not until 6:30 am on the morning of the accident, then liability might turn on whether the victim was wearing bright clothing or the car had its headlights on. In many of these cases, a through deposition of the driver will have to be undertaken by the Worcester car accident attorney.
Liability might also be shared depending on other facts and circumstances and the results of the accident reconstruction study. If so, Massachusetts allows claimants to collect compensation so long as their degree of liability is no more than 49%.
Damages in Pedestrian Accidents
In a pedestrian accident, you can bring a third party claim against the at-fault party if your medical expenses exceed $2,000, or if your injury was serious such as a broken limb, you suffered a permanent injury, disfigurement, loss of a body part or bodily function, or suffered fatal injuries.
Damages might include:
- Past and future medical expenses
- Past and future income loss
- Loss of earning capacity
- Diminished quality of life
- Pain and suffering
- Emotional distress
- Spousal claim for loss of consortium
In a death case, the administrator for the decedent’s estate may bring a wrongful death claim against the at-fault driver on behalf of the decedent’s immediate family members. Damages in wrongful death claims can include:
- Funeral and burial expenses
- Medical expenses incurred before death
- Lost earnings the decedent would have earned over his/her lifetime
- Pain and suffering if the decedent was observed to have consciously suffered before succumbing
- Loss of the decedent’s love, companionship, counsel and guidance
- Punitive damages if the defendant’s conduct was grossly negligent or willful and wanton
Retain a Car Accident Lawyer from Burns and Jain
If you or a loved one sustained injury or was killed in a pedestrian accident, call the law office of Burns and Jain today at (617) 227-7423 to schedule a free consultation about your injury claim.