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Frequently Asked Questions - FAQ
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Can I make a claim, as a pedestrian, if I was partly at fault for my injury?
Yes. Pennsylvania has a modified comparative negligent statute, which means, an injured party may obtain an award for damages -- even if 50% at fault. In other words, your conduct must have greater than 50% to blame, i.e., 51% or more, for your claim (as a pedestrian) to be cut off.
For example, let's say you jaywalked (crossed the street outside of the clearly marked cross-walk). Or, you wore dark clothing at night on the road. Alternatively, you went jogging in a dark area without lights or reflectors on your person. Or, perhaps, you failed to service your car's tires and you got a flat, causing you to stand on the side of the highway to get farther from traffic.
(You get the idea.)
Then, you were struck by a driver who was texting and not paying attention. You were hurt significantly, and your claim is worth approximately $200,000. You and the negligent driver were each are 50% at fault. Can you recover money from the negligent driver? Absolutely, yes, because you were only half (not 51%) at fault. However, your claim for damages will be molded (or reduced) by the amount of your fault, or 1/2, so you get $100,000.
What if, prior to trial, it's looking like I'm 90% at fault?
If it appears you were 90% at fault, your injury claim may still have great value. A negligent driver who was 10 percent at fault may not want to risk a jury trial, because we can never know with certainty what twelve strangers (the jury) will do with a case. "Nobody wants their name a jury slip," we say. Thus, the negligent driver (or his liability insurance carrier) will likely settle with you -- often for a significant amount -- to avoid the risk of an even more substantial verdict.
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What happens if the driver who hit me has no insurance or has minimum coverage?
Here, your own underinsured or uninsured motorist coverage (UM/UIM), if any, would apply. Click here for more information about coverage.
What if there's no liability insurance (not even UM or UIM) for an injured pedestrian?
Personal injury lawyers -- who handle injury claims on a pure contingency basis -- will be reluctant to help, when adequate liability insurance is lacking. Collections can be difficult. It's often said, there a "long walk from the courthouse to the bank."
However, some of us -- including yours truly -- may take the case against the uninsured driver, regardless. Why? PA's collection law has a special weapon to collect money from negligent drivers.
In Pennsylvania, if you get a money judgment for injuries from a roadway accident -- the defendant-driver must pay, or his driver's license is automatically suspended, unless he at least makes payments to you.This gives you, the injured pedestrian, considerable leverage against a driver lacking liability insurance. Here's the statute:
§ 1772. Suspension for nonpayment of judgments.
(a) General rule.--The department, upon receipt of a certified copy of a judgment, shall suspend the operating privilege of each person against whom the judgment was rendered except as otherwise provided in this section and in section 1775 (relating to installment payment of judgments).
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Can a person be charged criminally for fleeing the scene of an injury?
The answer is YES. PA's driving law - § 3742 - provides as follows:
§ 3742 Accidents involving death or personal injury.
(a) General rule.--The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary.
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What are the penalties for fleeing the scene of an accident involving injury or death?
These can be severe, especially if "serious" injury resulted from striking a pedestrian with one's vehicle. The law is as follows:
(b) Penalties.--
(1) Except as otherwise provided in this section, any person violating this section commits a misdemeanor of the first degree.
(2) If the victim suffers serious bodily injury, any person violating subsection (a) commits a felony of the third degree, and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than 90 days and a mandatory minimum fine of $1,000, notwithstanding any other provision of law.
(3) (i) If the victim dies, any person violating subsection (a) commits a felony of the second degree, and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years and a mandatory minimum fine of $2,500, notwithstanding any other provision of law.
At the magistrate level, there will be a preliminary hearing to determine whether there is adequate evidence to support the charge. There, a defendant may be tempted to challenge whether the injury was "serious," to avoid the mandatory 90 day prison sentence. Not smart. The court (at the preliminary hearing stage) must take the victim's statements at face value, as to the "seriousness" of physical injuries, even without medical evidence. Putting the victim, DA, and police officer through a full hearing will make them less likely to offer a deal later.
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What if I elected "limited tort"? What does that mean for my pedestrian injury claim?
Nothing. However, even some insurance carriers get confused about limited tort. First of all, what is limited tort? If you had elected "limited" tort with your auto carrier, restricts you from bringing a claim for pain and suffering from motor vehicle accident, unless your injuries are "serious" (or unless another exception to limited tort applies). Here is a link to our detailed "limited tort" post. All that said, limited tort only applies to injuries sustained when operating a motor vehicle, not those you get when struck by one.
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What are the common injuries to a pedestrian struck by a vehicle?
Those hit by a car, truck, or SUV often sustain:
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- Serious Physical Injuries. We see minor collisions involving only a contusions, which are bruises. More often, however, the injuries are more serious: fractures to bones (broken bones), comminuted fractures (shattered bone), or compound fracture (bone protruding from the skin), requiring surgical intervention. Ligament strains and tears are also common, in the areas of the ankle, knees, back and shoulders. Many clients suffer an aggravation of prior neck, back, or joint issue.
- Disfigurement. This can result from the impact or from being ran over or dragged on the ground. Plus, the above referenced surgeries can also cause permanent disfigurement, because minimally invasive arthroscopic surgery is not available when bone is shattered.
- Head Injury or Traumatic Brain Injury (TBI). Many suffer a brain injury and severe concussion. Symptoms include headaches, blurred vision, balance issues, vertigo, trouble reading, dizziness, and mood swings, and even aggressive behavior. There's no specific cure for concussion. Rest and restricting activities can allow the brain to recover. A victim may need to reduce sports, video games, TV, and socializing. Medications for headache pain, or ondansetron or other anti-nausea medications can provide benefit for symptoms.
- Emotional Distress. Many victims develop a debilitating fear of crossing a street or walking outside. This is especially disabling if the victim had ben an active walker, jogger, marathon runner, or anyone enjoying a walk outside to relieve stress and to enjoy life. This new stress can cause body weight fluctuation, a loss of sleep, irritability, trouble focusing, social anxiety -- all of which may require regular counseling.
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These injuries and limitations interfere with one's life overall: work and general activity level, restricting one's ability to engage in activities, help with child care or chores, socialize, get an education, or play sports.
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What I were riding a bike when struck by a car, will that make a difference?
The answer is, it depends. If you were struck and injured while riding a bicycle (two wheel, non-motorized bike), you have all the rights of a pedestrian. For instance, on a bicycle, you're not bound by limited tort. You are deemed to have "full tort" coverage. Plus, your medical coverage (through your auto policy) should also cover your medical expenses up to policy limits.
However, if operating an e-bike or e-scooter, capable of certain speeds, you may need to register the vehicle and carry adequate insurance.
Moreover, e-scooters are never permitted on the street in PA, which can jeopardize (but not make impossible) your claim for injuries. Plus, your own insurance auto insurance carrier may decline medical coverage, if your policy excludes the improper use of a "motorized" vehicle not intended for the streets.
Click here for more on e-bikes or scooters.
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What if I'm an undocumented worker (formerly "illegal alien"), struck by a car? Can I sue?
The answer is, Yes. The courthouse doors in the US remain open to everyone - regardless of immigration status. See Hagl v. Jacob Stern & Sons, Inc., 396 F. Supp. 779 (E.D. Pa. 1975). The only limitation will exist in regard to a claim for lost wages because, technically, an undocumented worker is not capable earning (on the books at least) a "wage" in the United States. See Montoya v. Gateway Ins. Co., 168 N.J. Super. 100, 401 A.2d 1102 (App. Div.), cert. denied, 81 N.J. 402, 408 A.2d 796 (1979).
