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  1. #1

    Default Pedestrian Hit by a Car While Crossing the Street, Drunk

    My question involves an injury that occurred in the state of: CA

    Hi,

    Well, I know a man who suffered from a car accident while crossing the street. I am trying to help him recover hospital expenses from the insurance company, since NO lawyer is willing to fight his case in the traditional traffic accident manner (If you don't win, you don't pay). I told the man to get the police report, since it seem odd no lawyer would get his case.

    I read the report. But, I seemed to find some discrepancies about the story. In addition, it seem odd that no witnesses were interrogated, since the man was with some friends and people, according to him, saw the accident.

    Party 1(driver): He claimed he had just turned right and was driving straight as a man just walked out of no where heading northbound. The damage to the vehicle was on the passenger side.

    Party 2 (victim): He claimed he had been drinking some beers (3-4) with some friends. That he was about to get into his car when he was hit from behind.

    Officer: He found the victim at fault. He also gave the victim a citation for crossing the street illegally.

    Conflict: When the officer arrived at the scene the victim was next to his vehicle, corroborating the victim's story of being hit while attempting to get into his car. Totally discrediting the story of the driver who claimed the victim was heading northbound. The police officer said the victim's vehicle was parked northbound-across the street. But according to common sense, the victim, if the statements from the driver are correct, should have not completely crossed the street.

    I know the consequences of the man driving under the influence could have been devastating to other innocent parties. I know in a perfect world, the result might have been the same. No one wants to be killed by some dumb ass drunk driver. It is 100 times better to have the drunk driver run over than have an innocent life lost to him. But, I guess despite feeling disgust for his actions, my love for the law prompts me to dig further, ask questions, and investigate.

    So my main question would be this one: If the police report was completely correct concerning fault, would the victim be entitle to hospital expenses even if he was at negligent?

    Thanks

  2. #2
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    Default Re: Pedestrial At-Fault Drunk While Crossing Street

    Insurance companies are not legally required to assign fault as the police do. They can assign it as they see fit, and can apportion fault between the parties if they wish.

    The question that will always come up is why the pedestrian was in the roadway? It does not matter if he was crossing the road, or walking off the curb and onto the street to get to the driver's door, he should not have been in the roadway. Period. While it is possible that the pedestrian was in "control" of the roadway and the vehicle might then have the obligation to avoid him, that is not apparently what the driver's statement indicates.

    Your friend can engage an attorney at his own cost, gather his witnesses and sue the driver. Now, if his medical expenses are small (under $7,500) then he will have to do this himself in small claims court. But, if his witnesses are going to say that he walked into the street and almost immediately got hit, bad for your friend because they will hang him.

    If attorneys are not leaping to his aid there is either no money in this (the damages are minor and the chance of an award is low), or he was clearly at fault.

  3. #3

    Default Re: Pedestrial At-Fault Drunk While Crossing Street

    Quote Quoting cdwjava
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    Insurance companies are not legally required to assign fault as the police do. They can assign it as they see fit, and can apportion fault between the parties if they wish.

    The question that will always come up is why the pedestrian was in the roadway? It does not matter if he was crossing the road, or walking off the curb and onto the street to get to the driver's door, he should not have been in the roadway. Period. While it is possible that the pedestrian was in "control" of the roadway and the vehicle might then have the obligation to avoid him, that is not apparently what the driver's statement indicates.

    Your friend can engage an attorney at his own cost, gather his witnesses and sue the driver. Now, if his medical expenses are small (under $7,500) then he will have to do this himself in small claims court. But, if his witnesses are going to say that he walked into the street and almost immediately got hit, bad for your friend because they will hang him.

    If attorneys are not leaping to his aid there is either no money in this (the damages are minor and the chance of an award is low), or he was clearly at fault.
    I understand what your saying, but after further analysis of the police report, I believe I have found further discrepancies in the story of the driver. Indicating that the police officer, perhaps, did not do a careful investigation of the incident.

    I don't know if my initial post indicated the contrary, but today I finally kind of place together most of the pieces. For example, I have created a vivid illustration of the accident illustrating and recreating what happened.



    Purple- Driver's Car
    Red- Victim's car.
    Gray- Victim
    Red box with black X- Damaged to the vehicle.

    According to the driver, he was driving westbound when the victim crossed northbound. However, after reviewing the police report, the damaged to the vehicle would have been in the driver's left side headlight or even in the middle of the vehicle. Yet, as indicated in the police report, the damaged was done to the passenger's right side headlight.

    If I am correct, the damaged to the right side of the vehicle would further provides evidence that the victim had totally crossed the road and was ready to enter the vehicle when hit by the car. Also, the police report mentioned the victim was lying down next to his car, further illustrating the aforementioned.

    As to being under the influence of alcohol, in this case, I believe the police officer failed in providing additional information. For example, how many beers did he drink? How many hours had he been drinking? At what time did he drink the last beer? I think that information would have been relevant, since that information was used to blame him for the accident a long with the fact he jaywalked.

    By the way, it was a residential neighborhood. The accident happened at about 6 or 7 p.m, it wasn't dark.

    If the information I now provide is relevant as to my reasoning of the incident, would the victim have a better chance of obtaining a positive result? ( Damages and hospital cost, or at least hospital costs).

    I think the lawyers my friend saw, either didn't dig enough into the case or are in agreement with the information that you provide.

    Thank You!
    I know you have way more knowledge about the law, so forgive me for my ignorance or if I am in disagreement with your knowledge. I just find the law interesting)

  4. #4
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    Default Re: Pedestrial At-Fault Drunk While Crossing Street

    The alcohol issue is largely moot since the pedestrian was not charged with any alcohol related offense, was he? Alcohol may be an unofficial associated factor, but it is not going to be the Primary Collision Factor.

    Once again we have a problem with a pedestrian crossing the road where he probably should not have been. CVC 21951(a) requires a pedestrian to yield to vehicles close enough that they might constitute a hazard. If the speed limit on this roadway was high enough, or the roadway narrow enough, the pedestrian could very well have been in violation of that section and thus caused the collision. However, 21951(b) also requires vehicle to yield to pedestrians already IN the roadway, but that would require that the pedestrian have been visible and that it would have been reasonable for him to yield in time.

    Questions I would be asking would include dimensions of the roadway, speed limit, clothing worn by the pedestrian, angle of the sun (for visibility), etc. These are also probably questions that the insurance company will ask as well. Seeing that the driver was headed west at about sunset, it is very likely that the sun might have played a huge factor in this. I worked a fatal collision a couple years back in an almost identical situation (but on a wider road and with the ped in a crosswalk) where the sun literally blinded the driver sufficiently that as she pulled away from a dead stop she did not see the elderly ped still in the crosswalk ahead of her. Even though the ped had started on a red signal, and was in the crosswalk unlawfully, the driver was bound to yield to her because she had been in the road. So, while at fault, the driver was not charged as a result of a mountain of mitigating circumstances ... heck, even the responding officers (including me) were blinded by the sun when we arrived.

    Your friend is free to sue the other driver (who will likely be represented by his insurance company). If he has any damages, he might be able to collect for any damages. However, if the other insurance company agrees that the collision was the fault of your friend crossing the road where he should not have been, then your friend may have to ask himself if it is worth the court fight.

    Before you ask, no, he cannot make the police change the report. They won't. In fact, they really can't. He can always submit a written account of what he believes occurred, and his friends might also be permitted to submit their accounts as well, but none of it will mean too much unless the issue goes to court.

    Lawyers will take the case if they think it is worth their time. If there is little chance of an award, then they will want to be paid up front. That could be many thousands of dollars. Even then, if they think the chance of an award - or the amount of an award - is small, then they will not likely pursue it. It could be that with a lack of injuries or a clear cut violation by the insured driver, they feel it is not worth pursuing ... too much to prove. In other words, too hard of a case to make.

  5. #5

    Default Re: Pedestrial At-Fault Drunk While Crossing Street

    No. He was not charged with any alcohol related offense. Just jaywalking.

    As you mentioned, lawyers aren't willing to work in a difficult case, especially those earning a percentage. To make matters worse, in this case, my friend doesn't have the funds necessary to hire an attorney and litigate the case. He is in his late 50s, earning minimum wage cleaning car rugs. And you and I know, lawyers aren't cheap.

    I have not seen him, to ask what type of clothing he was wearing. The wideness of the street is average. I would have to say there is plenty of space available to accommodated a pedestrian trying to get in his car with incoming traffic. We live in the central valley.

    It's really hard to observe how the investigating officer negligently failed in his analysis of the accident. Especially, how easy it was for him to assign fault, in a poorly investigated incident. However, it is a constant problem in the City of Parlier. Officers take advantage of immigrants who aren't able to communicate in the English language. And it isn't a dissatisfaction with all police agencies or officers, only those who take advantage of their position. But enough with the whining.

    Again to the case, if the accident didn't leave any permanent physical injury, would he at least be able entitle to receive hospital fees without the assistance of a lawyer? Or will the insurance company refuse to compensate as a result that their client was not at fault. He wants me to help try to recover at least that.
    ---------------------------------------------------------------------------

    One additional question, if you, of course, can answer. You have helped me before with information about my ambition and pursuit of a law enforcement career. I don't know if you recall, but I am the LAPD applicant with a juvenile record. The one caught with the metal brass knuckle and gang associated. At the end, I ended up withdrawing from the hiring process. It just seemed impossible to continue with two speeding tickets from 1 1/2 ago.

    I was able to find the court order. I was only charged with Penal Code Section 12020 (a). But my question is, is there a penal code section for gang association or is it an unofficial label? Because in my pursuit for honesty, I always put the charged and that I was found gang associated. Being able to put just the penal code section would probably benefit me, unless been ask questions about the incident, at which point I would have to disclose all the information in the case.

    By the way, I am heading up to San Francisco to take a test next month. Is it harder than the LAPD? I heard it was stricter concerning drug usage. And to be honest, I have experimented with weed about 3-4 times about 8-9 years ago.

    And thank you, sir. You are a very knowledgeable man.

  6. #6
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    Default Re: Pedestrial At-Fault Drunk While Crossing Street

    San Francisco may not be harder that LAPD, but they are ... different. Technically, the standards are the same. The problem SFPD has is that officers cannot afford to live near the city for what they pay.

    The code section that covers gang ENHANCEMENTS is PC 186.22. Being identified as a gang associate is not a crime and thus is not associated with any particular code. But, it does exist in documentation ... if done properly. By itself, it means little, but it could give an agency some pause if they come across it. This drops off after ... 7 years, I believe? I forget ... it might even be three years without any documented gang associations or activity - I can't recall and it's late.

    As for your friend, he can try to do anything in small claims court. But, absent representation, it is likely that the other driver's company will not settle.

    And it is a tad premature to say that the officer was "negligent" in his investigation. It might have been just fine. Once again, the pedestrian should never have been in the road. Whether that places him at fault or not, i can't say from here, but at the very least his presence is what is referred to as an associated factor so he at least shares some of the liability.

  7. #7

    Default Re: Pedestrial At-Fault Drunk While Crossing Street

    It is a relief that I won't have to disclose the gang association incident forever, only when directly ask. Time is passing, it will fade away little by little.

    As to the other problem, I might give it a try with the claim adjusters. Since it is better to give it a try than leaving it unknown. Damn, I should really go to law school. Too many legal problems- divorces, tenants, injuries... The good thing is that I am learning from experience.

    Thanks for the info.
    ....
    If you don't mind, how did you initiate your career in law enforcement? Was it difficult?

    Because I am giving up. I have a bachelors degree, yet I continue to work at our family business. It just seems impossible to get a foot in the door. Too much competition. I wish to work in law enforcement and go to law school at the same time. I feel like I am heading no where after college.

    Thank You!

  8. #8
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    Default Re: Pedestrial At-Fault Drunk While Crossing Street

    In the current economy, any career in the public sector is going to be far more competitive on some levels, but not nearly as rewarding as retirement and wage reforms will drive wages and benefits down. I'm looking to transition out in the next few years because I fear my retirement may not be here if I wait too long and the prospects of any real wage increases in the next five years is about nil. Takeaways will be the name of the game, not raises.

    As for a foot in the door, it took a lot of work. College, steady work history, kept my nose clean, and tested for a number of agencies back in 1990 when jobs were scarce.

    It will be nearly impossible to attend law school as you begin a law school education. The shift schedules would make attending classes nearly impossible. If you want to go to law school, either do it now, or wait until you have gotten established in a law enforcement or other career.

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