Common Defenses in Pedestrian Accident Claims

On Behalf of | Apr 12, 2021 | Injuries

Vehicle speed is usually the most important factor in a pedestrian accident claim. If the tortfeasor (negligent driver) is moving slower than 25mph at the time of impact, the pedestrian death rate is less than 10 percent. The fatality rate skyrockets to 90 percent at impact speeds above 55mph. In between these extremes, pedestrians often survive, but they usually sustain serious, permanent injuries.

Since velocity is so important, challenging vehicle speed is one of the most common defenses in these claims. More on that below.

Therefore, a Lexington personal injury attorney must build a solid, evidence-based claim. Proof is not only important because victim/plaintiffs have the burden of proof. Like a house built on rock, the case must be strong enough to survive some common defenses. If the case is built on sand, even a rather weak insurance company defense can wash it away.

Disputing the Facts

Insurance companies often dispute vehicle speed in court. Many insurance companies also argue that pedestrian victims who survive were not very seriously injured. An attorney must gather evidence to refute the first defense. The second defense is often up to the victims themselves.

If the victim/plaintiff relies on circumstantial evidence from witnesses, speed disputes are often successful. Witnesses are often incorrect or biased. Furthermore, they cannot provide specifics, unless they were in the car. Witnesses can only testify that the tortfeasor was travelling faster than normal.

An Event Data Recorder has none of these weaknesses. Computers are never wrong, if they were working correctly. Furthermore, EDRs provide specific velocity evidence. Since this gadget tracks vehicle speed, its data contains actual speed and not an estimate.

Attorneys must act quickly to secure such evidence. Otherwise, the insurance company might “accidentally” destroy the EDR.

As for personal injuries, it’s very important not to refuse treatment at the scene and to go to a doctor straightaway, even if you “feel fine.” Head injuries are very common in car wrecks. The brain usually hides its own injuries. Therefore, many victims don’t know how badly they are hurt until a car crash physician examines them.

More importantly, prompt medical attention also torpedos the “s/he wasn’t hurt that badly” argument.

Distracted Walking (Contributory Negligence)

Device distraction is not just a serious problem among drivers. Pedestrians are also guilty of device overuse. In fact, distracted walking might be more common than distracted driving, because there’s no law against it.

There’s a difference between device use and device overuse. The insurance company must prove more than the phone was on or that the victim used an app. The insurance company must show that the victim was so immersed in the device that s/he completely ignored the surroundings. These surroundings include passing traffic and whether the light was red or green.

Evidence on this point is difficult to obtain. Only the victim or an eyewitness really knows the extent of device use. Electronic logs only prove so much. Once users open an app, it usually remains open, even if the user swipes away from it.

Normally, victim/plaintiffs have the burden of proof in civil court. But in this area, the insurance company has the burden of proof. So, lack of evidence could be a factor.

If distracted walking or another form of contributory negligence is a factor, jurors must divide fault on a percentage basis based on the evidence. Kentucky is a pure comparative fault state. So, even if the victim was 99 percent responsible for the incident, the tortfeasor is still responsible for a proportionate share of damages.

Sudden Emergency

The emergency doctrine is an affirmative defense. The insurance company must admit that the tortfeasor was negligent and offer an explanation for that negligence. So, the insurance company proves the victim/plaintiff’s case. An attorney must simply refute this defense. This doctrine excuses negligence if the tortfeasor:

  • Reasonably reacts to

  • A sudden emergency.

The reasonable reaction element is usually present. Most tortfeasors stop and pull over to the right following an injury accident.

However, a jaywalking pedestrian is not a “sudden emergency,” even if the victim ran out into traffic without stopping and looking both ways. Jaywalking pedestrians are in the same category as stalled cars and large potholes. The duty of reasonable care requires drivers to anticipate such hazards and be ready to deal with them. A sudden emergency is usually a lightning strike, hood fly-up, or another very rare event.


Injured pedestrians are often entitled to significant compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. Virtual, home, and hospital visits are available. #goodelawyers