FAQ: What is driver’s duty to pedestrians?
A driver in New Mexico has a duty to keep a proper lookout for dangers and hazards. This means a driver must pay attention to the road, other vehicles, dangerous road conditions and specifically pedestrians . The basic standard is a standard of ordinary care which in the case of pedestrians is higher than the typical standard of care.
Ordinary Care is Required
The driver must keep a proper lookout so that he or she can maintain control of the vehicle to avoid hazards of which he or she should be aware. The driver is not required to detect all dangers and hazards. There is no requirement that the driver notice every possible hazard but must note hazards that are in plain site or otherwise should be apparent under the circumstances.
This will be a question of fact dependent upon the circumstances of each individual accident.
Duty to Lookout for Pedestrians
Many of the cases addressing proper driver lookout deal with auto/pedestrian accidents. There is more than a mere duty to look around. The driver must be vigilant. In other words, if there is pedestrian present, the driver has a duty to detect the pedestrian and avoid hitting him or her.
When a automobile hits a pedestrian, it will almost always be the fault of the driver. However, it might not be entirely the fault of the driver.
In some cases, the pedestrian may share the fault under New Mexico’s doctrine of comparative negligence. For instance if the pedestrian runs into traffic, then the pedestrian is going to share much of the fault. Comparative negligence is judged on a scale from 1-100%. It could be 0% or 100% the fault of either the driver or the pedestrian and everything in between.
Again, it will be specific to the accident and the conduct of the pedestrian and the driver.
Damages Under Comparative Negligence
The insurance company for the driver will inevitably claim that the pedestrian was at fault. This is as they say just how they roll. The challenge to the attorneys for the pedestrian is to show that the driver alone was responsible. However, this is not always possible as in the example above where a pedestrian runs into the road giving the driver no time to respond or avoid hitting the pedestrian.
In these cases, one might think it is a simple issue of math, multiply the total damages (i.e. injuries and costs to the pedestrian) times the percent of the drivers fault and this gives the amount of damages for which the driver is responsible.
Settlement of Auto/Pedestrian Accident Claims
It is in theory a simple question of math. It is definitely a question of math once it the jury has decided on the total damages and the comparative fault between the driver and pedestrian. But most cases do not get to the jury. Instead they are settled prior to a jury trial. On the other hand, some do go to trial and it is important that the pedestrian’s attorney prepare as if the case will go to trial.
This means that the attorneys for the pedestrian must investigate and understand the facts. Just as importantly, the attorney must present those facts to the insurance adjuster in a persuasive manner. There will always be a lot of resistance on the part of the adjuster to fully value the claim and its driver’s responsibility for the accident.
The settlement negotiations can take a long time. Frequently, it becomes clear that the adjuster has no intention of dealing fairly with the pedestrian. In those cases, a lawsuit must be filed. This does not end settlement negotiations. Rather, it is now an attorney for the insurance company rather than the adjuster that is doing the negotiating. This can be good or bad depending on the attorney. Either way, these cases will generally settle before the case goes to trial. It is just a lot of work to get there.
Contact an Attorney Experienced in Auto/Pedestrian Accidents
It is important that you seek experience legal representation. It is also important that you get an attorney that will put in the work necessary to obtain a fair settlement of your claims. Collins & Collins, P.C. may be contacted online or by phone at 505.242.5958. There are no costs or fees to you unless we are able to obtain a settlement or verdict in your favor.