One of the worst types of collisions is the pedestrian strike. There is no real positive outcome when a 2,000 lb. vehicle strikes or runs over a person. Generally, the law in Maryland is that pedestrians have the right-of-way in a crosswalk; after that, each case has to be reviewed individually. A few years ago, the state of the law was that anyone who crossed the street outside the crosswalk was at fault as a matter of law, until proven otherwise. That meant that a pedestrian struck outside the crosswalk started the case off with the presumption that she caused or contributed to her injury and could not win her case until she proved that the collision wasn’t her fault. That is called burden shifting. That was a difficult uphill battle for both claimants (injured people) and attorneys. Although that is no longer the law, the idea that the pedestrian contributed to her injury still prevails among many, if not most, Maryland citizens and jurists. The shifted burden is difficult but not impossible to overcome.
For a pedestrian to have contributed to a collision, the fact that she was outside the crosswalk must be an actual and legal cause of her injury. In legal terms, this is called the legal cause or the “proximate cause.” For instance, if a pedestrian is two feet from the crosswalk, it is often fair to say that the motorist should have seen the pedestrian. The cause of the collision was not, in such a case, the fact that the pedestrian was not in the crosswalk, simply being a step or two out makes no difference on whether a motorist should anticipate the pedestrian being there or whether the pedestrian was visible. The failure to walk in the crosswalk did not cause or contribute to the collision.
Another example is if a pedestrian crosses the street mid-block, and a motorist who has been traveling straight for a half mile fails to see the pedestrian and strikes her, the driver should have seen the pedestrian. In this case, the driver could have slowed, stopped, or otherwise avoided the pedestrian, notwithstanding the fact that she was outside of the crosswalk. The fact that the pedestrian was outside the crosswalk was unrelated to the fact that the motorist did not see her. This is because if the motorist did not see the pedestrian prior to the strike then she wouldn’t have seen the pedestrian if she was in the crosswalk. Here, the pedestrian was simply in the wrong place at the wrong time; and under Maryland law, that is not negligence.
From the other perspective, where you have a pedestrian step off the curb directly in front of the and into the path of a moving car, the pedestrian is usually at fault. It does not matter if the pedestrian steps off the curb mid-block, or in the crosswalk, it is impossible for the car to stop. Another important fact to remember is that the driver must yield to the pedestrian in the crosswalk, not the pedestrian on the sidewalk who is thinking about crossing. While the driver owes a duty to the pedestrian, the pedestrian also owes a duty to both herself and the driver. A pedestrian must make sure it is safe before she steps off the curb.
Pedestrian strike cases that occur outside of a designated crosswalk are difficult, but not impossible. Before pursuing such a case, a client must know that there are no guarantees and that the odds of winning and losing are about equal.
- Craig I. Meyers, Esq.
- FELDMAN & DARBY LLP
- 481 N. Frederick Avenue, Third Floor
- Gaithersburg, Maryland 20877