If you are walking down the street and a car hits you, can you sue the driver? Is the pedestrian at fault or the driver who hit them?
There is no simple rule – instead, SC’s comparative negligence rules apply to determine who was at fault and, if it was the pedestrian at fault, what percentage of the fault should be allocated to the pedestrian and what percentage should be allocated to the driver…
Horry County has more than its share of pedestrian accidents – in 2018 alone, there were 107 pedestrian collisions in Horry County and 17 deaths.
How do the courts determine whether the driver who struck a pedestrian was at fault or if the pedestrian was at fault through their own negligence?
When is the Pedestrian at Fault?
In Abdelgheny v. Moody, on October 28, 2020, the SC Court of Appeals reversed a trial court’s decision that a pedestrian was more than 50% at fault for not using a nearby crosswalk.
The trial court granted summary judgment to the driver – finding that, as a matter of law, the pedestrian was more than 50% at fault. The SC Court of Appeals disagreed and held that, under the circumstances of this case, the question of comparative negligence was for the jury to decide and not the judge.
SC’s Comparative Negligence Rule Applies to Pedestrians
SC’s comparative negligence rule says that if the plaintiff (the pedestrian, in this case) is more than 50% at fault for the accident, they are barred from any recovery. If the plaintiff is less than 50% at fault, their recovery will be reduced by the percentage of fault the jury allocates to them.
But when is the pedestrian at fault?
A look at two SC appellate opinions may help to illustrate the difference. In Abdelgheny, the court found that the pedestrian was at least partially at fault but that the question of whether the pedestrian was more than 50% at fault should have been a question for the jury.
In Bloom v. Ravoira, the SC Supreme Court reached a different conclusion and found that summary judgment was appropriate because the pedestrian was more than 50% at fault by law…
Bloom v. Ravoira – Pedestrian’s Fault Justified Summary Judgment
In Bloom v. Ravoira, the SC Supreme Court affirmed a lower court’s grant of summary judgment to a driver who struck a pedestrian in Charleston, SC – as a matter of law, the pedestrian was more than 50% negligent and therefore could not recover.
Although the Court noted that “ordinarily, comparison of the plaintiff s negligence with that of the defendant is a question of fact for the jury to decide,” they agreed with the grant of summary judgment under the facts of this case because:
- The pedestrian crossed in the middle of a city block, in between parked cars, when there were nearby crosswalks at both intersections,
- The pedestrian was wearing dark clothing,
- There was light rain,
- The pedestrian “ran” into the street between two parked cars, and
- The pedestrian was struck by the car “instantly” after running into the street.
The Court was pretty clear that their decision to affirm summary judgment was not ordinary and was the result of the extreme facts of the case – the pedestrian’s fault was fairly obvious in this case.
How is this different than the facts of Abdelgheny?
Abdelgheny v. Moody – Pedestrian’s Fault was a Jury Question
In Abdelgheny, the plaintiff crossed a four-lane highway, walking from her place of employment to a sign company across the street to check on an order her employer had placed there. The relevant facts include:
- It was a four-lane highway with a wide center median,
- She was wearing a neon pink sweatshirt and bright blue exercise pants,
- The nearest crosswalk was several hundred yards away – not close to where she needed to cross,
- It was dark and there was heavy rain,
- She was talking to her boss on her cell phone,
- She stopped to look before crossing the road.
The driver of the truck that hit her was traveling 25-30 miles per hour and had his windshield wipers on. He testified that he “looked up and . . . saw this lady in front of my driver’s headlight with her hand up. She turned and looked at me and made approximately two fast steps, and I hit her with the right passenger headlight.”
When he “looked up” and saw her, she was only ten feet in front of his truck – he hit the brakes but still hit her, breaking her hip and causing other injuries.
The Court of Appeals found that she was negligent because she did not use the crosswalk, but also held that whether she was more than 50% at fault was a question for the jury.
The driver owed a duty to keep a lookout for pedestrians and to drive at a speed that was safe for the conditions (heavy rain on a dark night), and the jury could easily have found that the driver’s speed or his failure to “look up” before the pedestrian was ten feet in front of him made the driver more than 50% at fault.
On the other hand, the pedestrian owes a duty to keep a lookout and to use a crosswalk whenever one is available.
Despite this, the jurors could have found that the pedestrian, although she failed to use the crosswalk, was not more than 50% at fault because the crosswalk was hundreds of yards away from her, she was dressed in brightly colored clothing, she stopped and looked both ways, and she had successfully crossed two lanes before the driver hit her.
What’s the difference between the two scenarios?
If there are facts from which a jury could decide that the driver was more than 50% at fault, the case must be decided by a jury and not the judge. In Bloom, liability was squarely on the pedestrian, while, in Abdelgheny, the pedestrian took precautions and there were multiple facts from which a jury could conclude she was not more than 50% at fault.
Pedestrian Accident Lawyers in Myrtle Beach, SC
Was the pedestrian at fault?
If you have been hit by a car while crossing the road, we can help you to determine whether you have a case and who was at fault, make a claim against the driver’s insurance company, and try your case to a jury if they do not pay full and fair compensation for your injuries.
The Myrtle Beach personal injury lawyers at Coastal Law help people who have been injured, including people who have been struck by a vehicle while walking down the road or crossing an intersection.