Identifying All Potential Claims, Exploring Causes

Whenever investigating a pedestrian collision case, an attorney must be aware of all potential causes for the collision beyond the driver’s or the pedestrian’s negligence. In identifying causes for such collisions, the attorney should cast a very wide net in evaluating all factors that may have impacted the driver’s failure to avoid the pedestrian as well as the pedestrian’s failure to avoid the vehicle. There are a few well-known factors outside of the conduct of the driver and pedestrian which all attorneys should consider when evaluating the causes of the pedestrian accident.

A. Road Defect

A common cause of pedestrian accidents which arise are defective road conditions. Liability of municipality for injury to person or property due to improper plan for or defects in original construction of the street or highway, 90 A.L.R. 1502 (originally published in 1934). In evaluating these type of collisions, an attorney must be diligent in inspecting all aspects of the roadway and traffic signals to determine whether or not any were contributing factors to the collision. For instance, pedestrian signals are subject to standardized timing pursuant to the Manual on Uniform Traffic Control Devices (MUTCD). If a controller for an intersection has been improperly programmed with an insufficient amount of time for the pedestrian to cross, then the private or government entity responsible for programming the controller for the intersection can be held liable for the collision. Tadros v. City of Omaha, 269 Neb. 528, 694 N.W.2d 180 (2005) (court held city may be held liable for failing to provide adequate time for a pedestrian to cross roadway by improperly timing pedestrian traffic device). Such improper programming can result in the pedestrian entering the intersection at an appropriate time, but not being able to completely traverse the intersection before the traffic is given a green signal. This can result in a pedestrian being trapped in the roadway after the signal cycles. Id.

Another road defect, which is well-known to cause or contribute to a pedestrian collision, is the failure to have appropriate signage in areas of roadway where pedestrians may cross. City of Midland v. Sullivan, 33 S.W.3d 1 (2000) (signage near school zone may create liability); Doumbia v. City of New York, 78 A.D. 3d 587, 913 N.Y.S.2d 24 (2010) (city may be held liable for improper signage near construction area). A variety of signage and electronic devices have been developed to give a driver a warning when approaching an area with pedestrians as well as to provide pedestrians with direction. If the government entity responsible for the roadway where the collision occurred failed to properly place signage, the government entity can be held liable for the collision. Id.

Another potential basis for governmental liability for road design is the failure of the government entity to place or maintain pedestrian signals and/or crosswalks at areas which are well known to have pedestrian crossings. This liability can be especially strong if there have been prior collisions with pedestrians at the intersection of which the government entity is aware. District of Columbia v. Carlson, 793 A.2d 1285 (2002) (city may be held liable by failing to provide adequate traffic control measures when traffic light was not functioning); Teeter v. City of Edmond, 85 P.3d 817 (2004) (city may be held liable for improperly maintaining crosswalk).

B. Texting While Driving.

Although it is undoubtedly a basis for liability for the driver in a pedestrian collision if he or she is texting, the individual with whom the driver is texting can also be held liable according to at least one appellate court. Qubert v. Best, 432 N.J.Super. 495, 75 A.3d 1214 (2013) (Supreme Court of New Jersey holds that sender of texts to driver may be held liable if aware that the person was driving). Generally, it must be shown that the person with whom the driver is texting was aware the driver was texting at the time of operating a motor vehicle. This basis of liability is a natural development of tort law in that the person texting with a driver has a duty to exercise reasonable care when engaging in conduct which can create a known danger to other individuals.

C. Passenger Liability for Distracting Driver

A passenger in a car involved in a collision generally cannot be held liable for the collision. However, an exception to this rule is when the passenger has engaged in conduct which distracted the driver at the time of the collision. Distraction of attention of driver of automobile as affecting question of negligence, wantonness, etc. or contributory negligence, 128 A.L.R. 1513 (originally published in 1939). Generally, this basis of liability arises when the passenger is having an argument or heated discussion with the driver or engaging in physical conduct which is preventing the driver from properly operating the vehicle. Hetterle v. Chido, 155 Mich.App. 582, 400 N.W. 2d 324 (1986) (Automobile passenger could be held liable for distracting driver thereby causing injury); Adams v. Morris, 584 S.W.2d 712 (1979) (appellate court in Texas held that passenger may be held liable for diverting attention of driver who then struck pedestrian). While this form of liability does not occur very often, it is important to be aware of its potential in all pedestrian accident cases.