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Pedestrian Injury and Death Cases — Rights and Remedies of a Pedestrian Accident Victim

John D. Winer, San Francisco

A. Who Can Sue in a Pedestrian Accident Case?

i. Any pedestrian injured by fault of another person or entity can sue.

Any minor or an adult who is walking at the time he or she is hit by a negligently driven vehicle or injured by a dangerous condition of property, public or private, or any act of any wrongdoer, can bring a lawsuit.

The spouse of the injured plaintiff can also bring his or her own lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.

ii. A pedestrian’s negligence does not limit the ability to sue, but may reduce the recovery of damages.

A plaintiff pedestrian does not have to be completely free from negligence in order to bring a case. However, if the plaintiff is found to be partially negligent, i.e., not acting as a reasonable pedestrian under the circumstances, the plaintiff’s recovery will be reduced by the percentage of plaintiff’s fault.

Thus, for instance, in a case in which a pedestrian was crossing in the middle of a street outside of a crosswalk when hit by a vehicle driver who was not paying sufficient attention, there may be a finding that the plaintiff was 25% negligent and the driver was 75% negligent. If the plaintiff was awarded $500,000 for his or her injuries, that award would be reduced $125,000 because to the plaintiff’s 25% contribution to the accident and would only recover $375,000.

B. Who Can Be Held Responsible in a Pedestrian Accident Case?

There are a great number of potential defendants in a pedestrian accident case. Potential defendants include:

  • a bus, truck or taxicab company when the bus, truck or taxi is maintained or operated negligently.
  • any motor vehicle operator who negligently causes the accident.
  • a public or private entity when a dangerous condition of public property is found to have caused or contributed to an accident, such as improperly maintained roads, inoperative traffic lights, lack of sufficient lighting, etc.
  • a manufacturer of any vehicle that is involved in the accident.
  • a repairer of any vehicle that is involved in the accident.
  • in the case of minors or incompetents, any person that did not fulfill a duty to ensure the child or incompetent safety when crossing a street.

C. What Is a Pedestrian?

The California Vehicle Code defines a pedestrian as “any person who is afoot or who is using a means of conveyance propelled by human power other than a bicycle.”

Please note that bicyclists have to follow most of the same rules of law as motor vehicle drivers, pedestrians do not.

According to the Vehicle Code, a “pedestrian” includes any person who is operating a self-propelled wheelchair, invalid tricycle, motorized quadricycle and, by reason of physical disability, is otherwise unable to move as a pedestrian.

D. The duty of care owed by motor vehicle drivers for the safety of others vs. The duty of care owed by pedestrians for their own safety.

i. Drivers have a higher duty of care than pedestrians.

It is well recognized that although pedestrians and drivers are both charged with a duty to exercise ordinary care, the amount of care required of a driver is greater since a driver is driving a vehicle on a public highway capable of inflicting injury or death.

This is in an important factor to point out to juries when a plaintiff attorney is representing a pedestrian in a serious accident case.

Case law holds that the driver of a motor vehicle, must be alertly conscious of the fact that they are in charge of a machine capable of inflicting great injury if they are negligent. Thus, their caution must be adequate to that responsibility under all of the circumstances.

ii. Lesser duty of pedestrians.

Pedestrians, on the other hand, have only their own physical body to manage and with which to set in motion a cause of injury. However, this does not mean that a pedestrian does not have to use ordinary care for his or her own safety.

iii. A violation of another’s “right of way” does not automatically lead to liability.

Further, contrary to popular belief, neither a driver nor a pedestrian has a “superior right of way.” Each must exercise the care required of a reasonable and prudent person under the existing circumstances.

Even when a motor vehicle driver is given the right of way by a statute, that right of way must be yielded if necessary to avoid injury to others.

For instance, when a pedestrian is in a crosswalk, the motor vehicle must yield; however, if a pedestrian in a crosswalk suddenly darted in front of a car, it is very unlikely that the motor vehicle driver would be found negligent, and very likely that the entire blame for the accident would be on the pedestrian, despite the fact that they were in the crosswalk and technically had the right of way.

E. Duty of Drivers Towards Pedestrians — General Negligence Principle.

i. Duty of a driver toward pedestrians generally.

The general rule is that a motorist has a duty of having the vehicle under sufficient control to avoid injury to pedestrians at all times.

ii. Driver must anticipate the presence of pedestrians.

The driver of an automobile has no right to assume that the road is clear and at all times must anticipate and expect the presence of others. Thus, a driver must maintain a vigilant lookout and anticipate at all times that, even though he or she is within the law, the danger of injury to a pedestrian may arise from their presence on the roadway.

iii. Reasonable driver standard.

The standard of care required of a driver is that which a reasonably prudent person would exercise in a similar circumstance.

iv. Driver must anticipate that a pedestrian may panic.

There are cases in California that hold that a driver is required to keep the vehicle at such a distance as to avoid hitting a pedestrian who may suddenly panic from surprise at an automobile’s unexpected approach.

v. Duty to look out for crosswalks.

Further, a driver has the duty to observe whether or not there are crosswalks in the vicinity.

vi. A cluster of pedestrians increases the duty of due care a driver must utilize.

The more pedestrians in the area, the more a driver, according to the law, has to be vigilant.

vii. The driver has the right to assume a pedestrian will follow the law.

However, like everybody else, a driver has the right to expect that all others, including pedestrians, will themselves follow the law.

F. Vehicle Code Violations Which May Lead to Liability of Drivers for Pedestrian Injury or Death.

i. Passing a vehicle stopped for pedestrians.

The California Vehicle Code provides that whenever any vehicle is stopped at a marked or unmarked crosswalk or at an intersection to permit a pedestrian to cross the street, the driver of any other vehicle approaching from the rear must not overtake and pass the stopped vehicle.

Thus, this law applies even if a pedestrian is crossing outside of a crosswalk. (However, this may give rise to an issue of the plaintiff’s own comparative negligence.)

ii. Motor vehicle driver’s duty to sound a horn when necessary.

The California Vehicle Code provides that the driver of a motor vehicle must sound a horn when reasonably necessary to ensure safe operation of the vehicle or when conditions are such that require a timely warning of the approach of the motor vehicle.

Thus, a motor vehicle driver can be found negligent for failing to blow a horn if there is a reasonably belief that a pedestrian is going to cross in front of them.

For a motor vehicle driver to be found in violation of the California Vehicle Code regarding sounding of horns, he or she must be aware of some apparent danger to a pedestrian so that a reasonably prudent person would sound his or her horn.

iii. Driving on the wrong side of the road.

In cases in which the defendant driver drives on the wrong side of the road, a requirement that a pedestrian maintain constant vigilance is relaxed. A pedestrian’s duty to maintain a proper lookout does not require that the pedestrian look out for motor vehicles moving in the wrong direction.

iv. Cases in which a pedestrian is injured when a driver moves from a stopped position.

The California Vehicle Code prohibits a motorist from moving a motor vehicle forward or backward from a stopped position until the movement can be made with reasonable safety. Violation of this statute is actually a fairly common cause of pedestrian accidents.

v. Speed.

The fact that a driver is authorized to travel at a given rate of speed in a particular area does not relieve the driver from the duty of keeping their vehicle under such control that the driver may be able to stop or otherwise avoid injury to a pedestrian.

On the other hand, a motor vehicle driver is not obliged to move at an excessively slow speed or to stop frequently to search for pedestrians (with the possible exceptions of school zones).

vi. Motor vehicle turning at an intersection.

A motor vehicle driver making a turn owes a duty to pedestrians in both marked and unmarked crosswalks to warn the pedestrian of their approach by utilizing a horn, if that would be reasonable under the circumstances.

vii. Parked vehicles.

Illegally parked vehicles have in some cases been determined to be contributing causes of a pedestrian’s injury. A pedestrian may be able to maintain an action against a parked vehicle under a number of circumstances including:

  • when an illegally parked vehicle limits or eliminates the ability of a pedestrian and motor vehicle driver to see each other coming.
  • a motor vehicle is parked on a sidewalk such that the pedestrian has to put himself or herself at risk by walking out into the street to get by.
  • a motor vehicle driver, by double parking a car, increases the risk to pedestrians, including people attempting to exit or enter the double parked driver’s vehicle.

viii. Suddenly obscured vision.

The fact that a motor vehicle driver’s vision has become obscured due to an approaching car’s headlights, or a misting of the driver’s windshield, or any other factor, does not relieve the motor vehicle driver from liability for injuries caused to pedestrians who are injured as a result of the motor vehicle driver’s obscured vision.

The motor vehicle operator still has a duty to know whether pedestrians are using a crosswalk or known crossing area and to avoid hitting them.

When a driver cannot see to ascertain whether or not a pedestrian is within a crosswalk, it becomes the driver’s duty to reduce the vehicle’s speed and place the vehicle under control so that it can stop in time to avoid hitting a pedestrian.

G. Duties of Drivers and Pedestrians When Pedestrians Are in or near a Crosswalk.

i. Duty to yield the right of way to pedestrians in crosswalks.

The California Vehicle Code requires the driver of a motor vehicle to yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk, or within any unmarked crosswalk at an intersection.

ii. Driver must assume the presences of pedestrians at a crosswalk.

Under the law, a motor vehicle driver has no right to assume the crosswalk is clear, and must utilize vigilance and care while approaching any crosswalk. This law applies even if the vehicle driver’s attention is diverted by other factors.

iii. Driver does not have to anticipate dart-outs.

However, a motor vehicle driver is not required to anticipate that a pedestrian may suddenly run out from behind a vehicle directly into the path of his or her car.

iv. Situations in which the pedestrian has visibly waived the right of way.

Further, a motor vehicle driver is generally entitled to assume that they have the right of way when the pedestrian, at one time having the right of way, conducts himself or herself in such a definite manner as to create a reasonable belief in the mind of the driver that the right-of-way has been waived.

v. A pedestrian who is hit in the crosswalk can still lose a legal case.

Just because a pedestrian is hit in a crosswalk does not mean that the pedestrian automatically wins a legal case. The negligence of the pedestrian and the motor vehicle driver are considered together and a finding of negligence is determined from all of the circumstances.

vi. Duties of drivers and pedestrians when a pedestrian is crossing outside a crosswalk.

When a pedestrian is crossing the street outside of a crosswalk, he or she must yield the right-of-way to a motorist, although the motorist still owes a duty of due care to the pedestrian, i.e., the motorist’s right-of-way is not absolute. A motorist is still required to maintain a lookout for pedestrians, whether or not the pedestrian is in a crosswalk.

A motorist can be found negligent for hitting a pedestrian outside of a crosswalk if:

  • the motorist fails to see a pedestrian walking outside of a marked crosswalk if a driver exercising ordinary prudence would have seen the pedestrian.
  • the driver is possessed of knowledge that the place of the accident, although in an unmarked crosswalk, is one frequently used by pedestrians for that purpose.

H. The Imminent Peril Doctrine.

The law recognizes that when a motor vehicle driver is confronted with an unexpected danger, the duty of care is not the same as it is in a situation in which the driver would have been able to utilize calmer or more deliberate judgment. This becomes particularly important in pedestrian versus motor vehicle accident cases in which a pedestrian suddenly steps out into the roadway.

I. Driver’s Special Duty of Care to Child Pedestrians.

Greater care must be exercised for the protection and safety of young children than for adults possessing normal and mature faculties.

The law recognizes that children’s conduct is unpredictable and one operating a motor vehicle should anticipate their thoughtlessness and impulsiveness.

The presence of children itself is a warning of danger requiring the exercise of care for their safety.

Thus, a motor vehicle driver must exercise a greater degree of care when they know or should know that small children are at play in the immediate area. This is especially true when one is driving in the vicinity of a school and residential districts where children are known to play.

Under the above circumstances, a driver even owes a duty to anticipate the presence of children he cannot see.

If a driver sees a child in a place of danger, the driver must keep their car under such control as is reasonably necessary to avoid injury.

J. The Duty of Motor Vehicle Drivers to Passengers Exiting from Street Cars, Buses or Trolley Cars.

A law that most people do not realize is that a driver of a motor vehicle overtaking an interurban electric or street car stopped or about to stop for the purpose of discharging or receiving any passengers must stop the vehicle to the rear of the public transport and remain there until passengers have boarded the car or exited it and have reached a place of safety.

The only exception to this rule is if the streetcar has been brought to a stop in a “safety zone” established at an intersection where traffic is controlled by an officer or a traffic control signal. In those cases, the motor vehicle can pass the stopped car, but not at a speed of greater than 10 miles per hour and must still use due caution for the safety of pedestrians.

K. The Duty of Care Placed on Pedestrians.

i. Pedestrians must use reasonable care at all times.

Pedestrians are required by statute to obey traffic signs and signals. Further, every pedestrian has the duty, before entering a street, to make reasonably careful observations to ascertain traffic conditions to be encountered; thus, a pedestrian has a duty to look in the direction from which an approaching motorist might endanger the pedestrian’s safety, to exercise reasonable care at all times while crossing the street and to continue to be alert to safeguard against injury.

ii. Pedestrians cannot walk in front of a motor vehicle.

Under the law, a pedestrian who is aware of the approach of a vehicle should not begin or continue crossing a street in such proximity to the crossing or traveling at such speed as to constitute an imminent peril. A driver has the right to assume that a pedestrian will not leave a place of safety to step directly in front of the driver’s vehicle.

iii. Pedestrian just outside a crosswalk is entitled to the same protections as a pedestrian in a crosswalk.

Interestingly, a pedestrian who is “just outside of a crosswalk” is entitled to the same protections as a pedestrian who is a crosswalk.

A pedestrian who crosses outside of a crosswalk is not necessarily negligent, but must use greater care in crossing the street.

iv. Pedestrians on sidewalks.

A pedestrian walking on a sidewalk has the right of way; thus, a vehicle pulling into a driveway must yield to the pedestrian. Further, a pedestrian’s duty to utilize due care is lessened when walking on a sidewalk.

L. Special Rules Regarding Child Pedestrians’ Duty to Protect Themselves.

Young children are held to a different and more limited standard of care than are adults. They are only required to exercise that degree of care expected of children of like age, experience and intelligence. Therefore, even a child who suddenly runs out into the path of an oncoming car will not be determined to be negligent as a matter of law (however, the driver of a car may be found to be not negligent).

M. Duty of a Parent to Protect a Minor Child.

A child’s parent or custodian is charged with the duty of exercising ordinary care in protecting the child from injury by motor vehicles traveling on a public street. Further, a parent is required to utilize greater care in protecting a younger child than an older one.

Fortunately, a parent’s negligent failure to supervise a child does not affect the child’s right of recovery from another person or entity who was negligent. However, the other person who was negligent can file an action against the parent, known as a cross-complaint, in an effort to reduce his or her payment of damages.

N. Pedestrians Who Are Street Workers.

A street worker is treated differently from other types of pedestrians. Because it is recognized that they will be distracted by their work, a street worker is found to be justified in assuming that operators of motor vehicles will use reasonable care commensurate with visible conditions and will approach with their vehicles under reasonable control.

Thus, when a street worker must remain physically in a street amidst moving traffic in order to perform duties, there is no duty imposed on the street worker to look out constantly for motor vehicles. On the contrary, it is the duty of drivers of vehicles to observe the street laborers and avoid contact with them. This duty is raised when there are red flags and other warning signs in the area.

O. Intoxicated Pedestrians.

Intoxication may not be asserted by a pedestrian as a justification for conduct.

Intoxication may result in a finding of comparative negligence. However, evidence of intoxication does not necessarily establish fault on the part of the pedestrian. The defendant must still establish that the intoxication caused the accident.

P. Disabled or Handicapped Pedestrians.

A pedestrian with an impaired physical condition is held to the degree of care of a person of ordinary prudence having such a physical condition, acting under the same or similar circumstances. Thus, a person with a hearing impairment is generally considered to have a duty to use other senses to protect against injury.

A totally or partially blind pedestrian who is carrying a predominantly white cane or using a guide dog has the right-of-way. A driver of any vehicle approaching such a pedestrian who fails to yield the right-of-way or to take all necessary precautions to avoid injury to the blind person is guilty of a misdemeanor.

However, a driver of a motor vehicle would probably not be held responsible for a blind person’s injuries if the blind person, completely unexpectedly, walked in front of a car, and the driver had no ability to see the plaintiff in time to stop.

Q. Special Considerations for Plaintiffs When Litigating Pedestrian Accident Cases.

i. Jurors who drive motor vehicles may tend to identify with defendant driver.

To start with, a plaintiff or plaintiff attorney who is litigating a pedestrian accident case must realize that most jurors who regularly drive motor vehicles are going to identify more with the motor vehicle driver than the pedestrian. Most drivers do not look out carefully enough for pedestrians, and live with a fear in the back of their mind that some day they will get unlucky and hit a pedestrian.

Thus, a plaintiff’s attorney pursuing a pedestrian accident case must recognize this concept and attempt to present the facts in such a way to convince the jurors that under the particular facts of the subject case, the defendant had more than enough reason to expect that a pedestrian would be crossing in front of the car.

Therefore, any of the jurors under this unique set of circumstances would have avoided the accident by driving more carefully.

ii. Factors that will increase a pedestrian’s chances of prevailing.

  • the driver was familiar with the place of the accident.
  • the driver recognized that pedestrians frequently crossed the street at the place of the accident, whether or not it was a marked crosswalk.
  • the driver previously had to stop for pedestrians at the point of the accident or has seen other drivers stop.
  • there were circumstances present on the date of the accident which would have indicated that pedestrians were in the vicinity such as a concert letting out, a group of people clearly visible standing on a sidewalk or prior pedestrians crossing the street.
  • that the motor vehicle driver had a clear opportunity to see the plaintiff crossing the street.
  • that the reason why the driver could not stop in time was because he or she was speeding.
  • the plaintiff, because of the clothes her or she was wearing or any packages being carried, was clearly visible from a distance in which the driver would have had an opportunity to stop.

iii. Factors that will decrease the likelihood of a finding of negligence against the pedestrian.

In terms of justifying the conduct of the plaintiff pedestrian, the plaintiff’s attorney must establish that:

  • the plaintiff, based upon past experience, had reason to believe that motor vehicle operators would stop at the subject location when he or she began crossing the street.
  • plaintiff was in or near a crosswalk.
  • the plaintiff’s ability to see the oncoming car was obscured by parked vehicles, a curve in the roadway or other factors (however, remember that what’s “good for the goose is good for the gander” and under most circumstances, something that would have obscured the plaintiff’s ability to see the defendant would have obscured the defendant’s ability to see the plaintiff).
  • plaintiff had the right of way.
  • it was reasonable for plaintiff to believe plaintiff was safe to enter the street.

R. Special Considerations in Litigating Pedestrian Accident Cases When the Pedestrians Are Minors.

i. Jurors will identify with the driver.

The most tragic cases arise out of accidents in which a minor crosses in front of a moving motor vehicle and is killed or incurs serious injuries.

This type of accident is every parent’s nightmare and every motor vehicle driver’s nightmare. It is essential that the plaintiff’s attorney recognizes that despite the fact that the jurors will feel tremendous sympathy for the plaintiff and the family, they will identify strongly with the driver of the motor vehicle with a “there but for the grace of God go I” philosophy.

Further, on a psychological level, jurors who are parents will not want to believe that this type of tragedy could happen to their own family and their own children. Thus, they may go out of their way to look for reasons for why, somehow, the parents of the child or the child himself or herself are to blame for the accident. They will want to believe that their own training of their own children would have prevented an accident like this and that their own children would have had better judgment than the plaintiff; therefore, this accident would have happened to their children. Thus, it must be the child’s or parents’ negligence which caused the accident.

ii. Factors that will help plaintiff prevail in a child pedestrian accident case.

This does not mean that a child pedestrian cannot prevail in a vehicle accident case — if the facts and the law are on the plaintiff’s side, the child should win the case. However, in close cases, and most cases are close cases, the bias of the jurors becomes an important consideration and the plaintiff’s attorney must, in the presentation of evidence and argument, establish that:

  • the plaintiff was properly instructed regarding the crossing of streets by his or her parents or guardians.
  • that the plaintiff ordinarily used very good judgment.
  • that the plaintiff had reason to believe that the motor vehicle would stop in front of them based upon their prior experience.
  • that there were factors present to indicate that there were children playing in the area which the defendant driver should have anticipated.
  • that there were factors present to indicate a child would run out into the street. For example, a ball rolled in the street before the child entered the street which should have automatically alerted a driver to stop because of the high likelihood that a child would chase it.
  • that the driver knew from past experience that children typically played in that area.
  • that the driver and/or the child pedestrian had previously seen cars stop for pedestrians in that area.

S. Expert Testimony.

i. Accident reconstruction experts and human factors experts generally.

The two types of experts most commonly retained in child pedestrian accident cases are accident reconstruction experts and human factors experts.

Accident reconstructionists attempt to analyze and reconstruct the factors that were involved in the accident to help aid the jury in determining fault, and human factors experts analyze the relationship between people and machines, and based on studies and a study of the particular case, testify as to what the expected or reasonable conduct would or would not have been of the participants in the accident including the motor vehicle driver and the pedestrian.

ii. A child psychologist may help plaintiff prevail on liability.

In cases involving children, plaintiff should consider retaining a child psychologist or a person with similar expertise, to talk about the normal behavioral patterns of children, since a child only owes the duty of care of an ordinary child, yet it is sometimes hard for adult jurors to remember how reckless they were as children.

iii. Kinesiologists.

Further, in cases in which the speed of the child crossing the street is an important factor, which is frequently, a plaintiff’s attorney should consider retaining a kinesiologist to perform tests and testify as to the actual speed that the plaintiff walked as opposed to “presumed” speed from studies.

iv. Expert analysis of a pedestrian accident case.

Most pedestrian accident cases will involve an analysis of a motor vehicle operator’s ability to avoid impact with a pedestrian once he knew or should have known that the pedestrian was crossing in front of them. To a significant, but lessor extent, the expert testimony will also focus on the ability of the pedestrian to have perceived the potential danger of a motor vehicle and avoid it.

v. Factors considered by expert in analyzing pedestrian accident cases.

In making their analysis, the following factors will often be considered by expert witnesses:

  • the speed at which the pedestrian walked across the street. (Obviously, the slower the pedestrian was walking, the more opportunity the motor vehicle driver would have had to see the pedestrian and take appropriate action.)
  • the speed of the motor vehicle at the time of the initial perception of the pedestrian.
  • factors which should have caused the motor vehicle operator to be on the lookout for pedestrians.
  • any parked motor vehicles, poles, trees or objects which would have obscured the driver’s view of the pedestrian or the pedestrian’s view of the driver.
  • the perception and reaction time of the driver and, to a lesser extent, the pedestrian.
  • the reasonable expectations of the driver and the pedestrian under the circumstances.
  • the type of vehicle that the motor vehicle operator was driving, and whether or not limited braking capacity should have required more caution. (This would be true of a heavy motor vehicle such as at truck or a bus that cannot stop as quickly as most cars.)
  • the speed of impact between the pedestrian and the motor vehicle operator.
  • the point of impact.
  • the point of rest of the pedestrian and their clothing or belongings.
  • the point of rest of the motor vehicle.
  • the clothing the pedestrian was wearing at the time of the accident.
  • lighting that was available at the time of the accident.
  • road signs or markings that were present at the time of the accident.
  • the common characteristics regarding behavior and impulse control of a child of a similar age of the plaintiff (this will be the psychological testimony).

vi. Damage experts.

A wide variety of experts may testify on issues involving injury and damages such as doctors, other health care providers, vocational specialists, life care experts and economists.

T. What If the Plaintiff Is Partially at Fault?

A plaintiff can recover even if he or she is also at fault. California is a comparative negligence State in which a negligent plaintiff can recover damages; however, their monetary recovery is reduced by the amount of their fault. For instance, if a court or jury finds that a plaintiff’s damages should be valued at a $1,000,000, but finds the plaintiff 25% at fault, his or her recovery would be reduced by $250,000 to $750,000.

U. Compensatory Damages in Pedestrian Accident Cases.

In a pedestrian accident case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.

The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.

Pain and suffering is typically the most significant element of a plaintiff’s damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.

V. Claim for Loss of Consortium.

A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

W. Punitive Damages.

Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant’s misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals. In motor vehicle cases, punitive damages are most frequently awarded against drunk drivers.

X. How Soon Must a Case Be Brought After a Pedestrian Accident?

Although there are a few exceptions, generally speaking in California a case for serious personal injury must be brought within one year of the date of the accident/incident. In rare cases, that time period is extended to one year from the date of the discovery of a wrongdoing and/or an injury. However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in medical malpractice cases and cases against public entities, minors have until their 19th birthday to bring a case.

Y. Considerations in Evaluating Cases for Settlement.

vii. Many different factors are taken into consideration when evaluating settlements.

There are many, many factors which are utilized when evaluating a case for settlement. The perception that many of the public have that a case settles for three times the medical bills and wage loss cannot be further from accurate. There are cases that settle for millions of dollars in which there are no medical bills or wage loss and there are cases that settle for a few thousand dollars in which there are hundreds of thousands of dollars of medical bills and wage loss. Following are some of the factors that are relevant to evaluating the case for settlement purposes:

viii. Liability.

The clarity of liability (i.e., fault) in the case is a critical settlement factor.

In a case in which liability is unclear or the plaintiff has a substantial chance of losing, the settlement value of the case has to be reduced significantly to factor in the plaintiff’s chances of losing.

Theoretically, if the value of an injury claim is $100,000, but plaintiff only has a 50/50 chance of winning, a $50,000 settlement may be appropriate. However, plaintiffs must always realize that cases against large defendants or in cases in which the defendant is insured, that the plaintiff has a lot more to lose than the defendant. In the example above, if the insurance company turns down a $50,000 demand and the plaintiff wins $100,000, payment of an additional $50,000 will mean very, very little to a large insurance company or corporation. On the other hand, if the plaintiff turns down the insurance company’s $50,000 offer and wins nothing at trial, it could create a devastating financial blow in which the plaintiff is unable to pay for his or her bills.

ix. Comparative fault of the plaintiff.

If a plaintiff is found to be partially at fault for causing his or her own injury, then their potential jury award is reduced on the basis of their percentage of fault. In other words, if a case were to go to trial, and plaintiff were to receive a $100,000 verdict, but was found to be 25% at fault, the plaintiff’s verdict would be reduced to $75,000. Thus, when settling a case, plaintiff should reduce his or her expectations of a settlement by the likely finding of percentage of fault that would occur if a case were to be tried.

x. Likely jury verdict value of the case.

In cases in which insurance policy limits are not an issue, most good attorneys attempt to settle the case based upon what a jury would be likely to award if the case went to trial.

Determining what a jury will award in a given case is more of an art than science; however, reasonable estimates can be made based upon what jurors have awarded in similar cases in similar venues (i.e., locations). Most verdicts are reported in “jury sheets” that lawyers read and utilize when attempting to assess the value of any particular case.

xi. Aggravated liability.

In cases in which a jury is likely to get angry at a defendant for misconduct that was something more than negligent, it is known that jurors are likely to “spike” their verdict and award more money for a plaintiff’s injury than they would if a defendant’s misconduct was merely negligent.

Aggravated liability situations, such as a defendant who was found to be driving drunk or a defendant who intentionally hurts a plaintiff will increase the risk to the defendant of a large jury award and this should be taken into consideration in settlement.

xii. Punitive damage exposure.

If the defendant’s misconduct is so bad that there is a risk for punitive damages, i.e., the jury awarding damages specifically to punish the defendant, this should become a major factor in settlement negotiations. A potential award of punitive damages is complicated by the fact that under the law, the insurance company is not allowed to pay an award for punitive damages; however, normally, the defendant, through a personal attorney, attempts to apply pressure on the insurance carrier to pay more in settlement so that the defendant will not be exposed to the punitive damage risk.

xiii. The character and credibility of the parties.

A plaintiff’s case is worth more if he or she is likeable and believable. It is known that jurors will award more money to people that they like and believe than people whom they dislike and don’t believe.

To a lesser extent, this is also true for defendants. A likeable or believable defendant is likely to fare better in a lawsuit than someone with the opposite traits.

xiv. The extent of the injury.

Theoretically, the more serious an injury, the greater should be the value of the plaintiff’s case.

xv. Objective evidence of injury.

Injuries that can be visualized or that are able to be demonstrated by radiographic evidence such as x-rays, MRIs, CAT scans or other scientific tests, will normally result in higher settlements than injuries which depend upon the believability of the plaintiff to prove.

There are many injuries which may have severe consequences for the plaintiff which are not diagnosable by objective tests. This can include severe back problems, headaches and pain anywhere in the body. Experience has shown that jurors are hesitant to award large damages in cases in which there is no objective evidence of injury; thus, the settlement value of any case is increased by objective evidence of injury and decreased by the lack of it.

However, a credible plaintiff can sometimes overcome the lack of objective evidence of an injury and this must also be taken into consideration in the right case.

xvi. Past and future medical bills of the plaintiff.

As long as a plaintiff can establish that past medical expenses and likely future medical expenses are reasonable and related to their injuries, the bills will be an important consideration in settlement.

However, the defense will generally claim some amount of overtreatment and, thus, some portion of the medical bills should be excluded from settlement consideration. Further, the defense will argue that plaintiff will be unlikely to need or have the claimed future treatment and/or the future treatment would not be related to the subject incident.

xvii. Past wage loss and future wage loss.

Wage loss is another important consideration in evaluating a claim as long as plaintiff can establish that he or she was reasonably off work or will be reasonably off work due to the subject incident. The defense will likely take the position that the amount of the wage loss should be discounted because plaintiff should have been back to work sooner and, in the case of future wage loss, the defense will claim that plaintiff could be doing some type of work which would pay them as much or almost as much as the work they were doing before the incident.

Also, for plaintiffs who are self-employed or do not have a strong consistent earning history before the accident/incident, it can become very difficult to establish a wage loss claim.

xviii. Is the injury permanent.

In cases in which plaintiff has a permanent injury and some objective evidence of that injury, there will likely be a higher settlement value because the case will have more jury appeal.

xix. Venue (where the claim will be tried).

It is beyond question that cases tried in certain locations, particularly urban locations, result in much higher verdicts than cases tried in more rural counties. This is a factor that must be taken into consideration in settlement.

xx. Policy limits and defendant’s assets.

No matter how severe the injury, the plaintiff’s ability to recover damages against defendant will be limited by either the defendant’s policy limits or the personal assets of the defendant.

However, in cases involving motor vehicles, the plaintiff may have his or her own uninsured or underinsured motorist insurance which would provide additional coverage for the plaintiff’s injury and allow the plaintiff to receive further compensation in a settlement with their own insurance carrier.

xxi. Target defendants.

Even though jurors are not supposed to consider the wealth of a defendant or whether or not the defendant is a corporation in their verdict, they are far more likely to make larger awards against large companies than they are people who they perceive to be middle class or poor. So this becomes another important settlement consideration.

xxii. Reputation and ability of attorneys.

The claims representative or defense attorney will report to the insurance carrier or defendant the ability of the plaintiff’s attorney and the likelihood that the attorney will try a case and try it well.

In situations in which the defense believes that the plaintiff’s attorney will not be willing to take the case to trial, there is little incentive to offer a significant amount of money in settlement.

On the other hand, if the defense believes that a plaintiff’s attorney will not only go to trial, but will receive an optimum verdict, the defense’s risk is increased and thus the settlement value of the case is increased.

By the same token, plaintiffs must also take into consideration the reputation and ability of the defense attorney. If the case is against a good defense attorney, plaintiff will likely receive less money from the jury; thus, the settlement value of the case, to some extent, is decreased.

xxiii. Expense of litigation.

The expense of litigation should also be considered in settlement. There are some cases which, if worked up properly, could result in the expenses actually being higher or almost the entire amount of an eventual settlement or verdict.

Some insurance companies and corporations are cost conscious and will take into consideration the expense of proceeding in the case versus early settlement.

However, just because a case may cost the defense $200,000 to litigate does not mean that in a case they otherwise evaluate as being worth $25,000, they are going to offer the plaintiff $200,000 in settlement.

Rather, in the above example, it may cause the corporation or insurance company to raise their offer five or ten thousand dollars or to try to settle the case early for $25,000 before expenses are actually incurred. Corporations and insurance companies are loathe to make offers of settlements based on the cost of defense because of a concern that they will be seen as an easy target for plaintiffs.

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit for more information or for a free online consultation.

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