Personal Injury Liability for Pedestrian Accidents

There was recently an article in the Baton Rouge Advocate about a report that ranks Louisiana as the 5th highest state in the nation in pedestrian deaths. The article explains, “Pedestrian deaths are on the rise even as vehicular deaths overall have decreased in Louisiana over the past 10 years.”

The main reason for the high number of fatal pedestrian accidents is that Louisiana has few sidewalks and bike paths. Pedestrians and cyclists simply have no choice but to walk or ride on roads intended for cars. The unfortunate result is more car accidents that involve pedestrians.

The Louisiana law involving injuries to pedestrians is found under Article 2315 of the Louisiana Civil Code. Basically if you are negligent while operating a vehicle and your injure a person walking or riding their bike, you are responsible for their injuries. The financial responsibilities could include compensation for pain and suffering, psychological injuries, wage loss, and future medical expenses. If the accident results in the pedestrian’s death, it would be a wrongful death action with compensation for burial expenses, pain and suffering prior to the death, family’s members loss of consortium, and loss of the individuals future wages. The goal of a pedestrian accident claim is to provide compensation in an effort to restore the victim to the condition they were in before the accident.

Determining Negligence

To determine if a driver is negligent, the “reasonable man standard” is used. Was the driver operating the vehicle as a reasonable person would? Or in other words, was the driver acting in a safe and careful manner? If not, he or she should be responsible for the injured pedestrian’s damages.
Instances where a driver could be negligent:

• Speeding
• Driving while intoxicated or under the influence
• Driving while distracted (talking on a cell phone for example)
• Driving recklessly (drag racing for example)
• Driving when they are sleep-deprived or otherwise impaired

However, there is also a second element involved whenever you have a pedestrian struck by a vehicle.  In Louisiana, the courts have long recognized that it is the driver who has the last chance to prevent a possible accident with a pedestrian. The driver is held to a higher standard because they are in control of the vehicle, and it is the vehicle that actually causes the injury or death. Essentially, if a car hits a pedestrian, the car wins every time.

No Automatic Liability

Long ago, there was a strict liability case which imposed automatic liability upon drivers in this type of situation. This means that a driver would be automatically considered responsible for the accident, regardless of the specific circumstances. That case has long since been repealed. However, it is still fairly easy to impose liability on a driver when they strike a pedestrian. If you think about it, it makes sense — the driver is operating a heavy, powerful vehicle capable of inflicting great harm on a pedestrian.

Pedestrian Liability

In many cases, pedestrians are walking along Louisiana highways because there is no other area to walk than the shoulder of the road. In this case, he or she is doing the best they can to stay out of traffic. If a driver is speeding and momentarily loses control of the car and goes off the shoulder and hurts or kills the pedestrian, a judge and jury will likely find the driver negligent and liable for the pedestrian’s injuries and damages. However, if the pedestrian is drunk and walking in the middle of the roadway, then the pedestrian would be at fault and the driver would not be found negligent.

Drivers can avoid pedestrian and bicycle accidents, and protect themselves from potential negligence, by exercising extreme caution when encountering a person walking or biking. Slow down, move over as far as you can from the person, and anticipate that the pedestrian or cyclist may make a mistake. Remember that you are the last person who can avoid this accident. You will also want to remember that we live in a state that has the fifth highest amount of pedestrian deaths — you do not want to contribute to this number.