Any wrongful death lawsuit that involves a pedestrian can be a complex matter. Establishing the facts – and how the laws apply to those facts – plays an important role in surviving family members receiving fair compensation. Our pedestrian accident lawyers explain what you should know about wrongful death lawsuits involving pedestrians.
Wrongful death laws apply to pedestrian accidents
When a pedestrian is killed because a driver acts wrongfully, the executor or administrator for the victim may bring an action for wrongful death. (S.C. Code § 15-51-20.) The claim must be for the benefit of survivors named in § 15-51-20 of South Carolina’s “Death by Wrongful Act” law.
South Carolina law protects pedestrian accident victims
Pedestrians have the right to presume that motor vehicle operators will observe traffic laws. Myers v. Evans et al., 81 S.E.2d 32 (S.C. 1954). In addition, pedestrians have the right to use the roads lawfully.
If the victim was a pedestrian, it does not change the availability of a wrongful death claim under the law. Likewise, damages payable under § 15-51-40 are not diminished because a victim was a pedestrian. (See Smith v. Canal Ins. Co., 228 S.C. 45 (1955), where an appeals court ruled in favor of a pedestrian fatally struck while standing on asphalt on the narrow portion of a highway by a bridge, where there was evidence the driver was at fault for failing to notice the pedestrian or take evasive action.)
The actions of all parties are important – comparative negligence applies
A wrongful death action may be available when a pedestrian loses their life because of the wrongful act, neglect or default of another. But the actions of the pedestrian are still relevant in determining their right to compensation and the amount that survivors receive. Under South Carolina’s comparative negligence laws, a party may claim compensation if their negligence does not exceed fifty percent of total fault among all defendants and the plaintiff’s own comparative negligence. (South Carolina Code § 15-38-15.) Comparative negligence laws apply in wrongful death claims involving pedestrians.
When a fatal accident involves a pedestrian, the vehicle driver may be at fault, the pedestrian may be at fault, or fault may be shared. A party is liable for damages only if they are legally at fault. Neither the vehicle driver or the pedestrian is automatically at fault simply because of their status as the driver or pedestrian. Rather, fault may be apportioned to either party or to both parties based wrongful acts and negligence.
Traffic laws may help to determine fault
If a driver or a pedestrian violates a traffic law, their actions may automatically be considered negligence. Violation of a traffic law is considered negligence per se. Austin v. Specialty Transp. Services, 594 S.E.2d 867 (Ct. App. 2004). With negligence established, the question then becomes whether the negligence is a proximate cause of the victim’s injury. Fairchild v. SCDOT, 683 S.E.2d 818 (2009).
Just like there are traffic laws that motor vehicle drivers must abide by, there are also rules for pedestrians to follow as they use the roads. South Carolina law says that “Any person afoot is a ‘pedestrian.’” (S.C. Code § 56-5-390.) Pedestrians must follow the laws that apply to them. Many of these laws are found in South Carolina Code Title 56 – Motor Vehicles, Chapter 5, Uniform Act Regulating Traffic on Highways. However, this does not mean that the pedestrian’s negligence was necessarily a cause of the crash, or that the pedestrian’s fault is more than a driver’s fault. For example, a pedestrian could be slightly outside of a cross-walk when she is hit by a driver who is not paying attention and runs a red light. While the pedestrian technically in violation of the statute and “negligent”, the pedestrian did not cause the accident.
Note: Although violation of a traffic law is considered negligence per se, it is not recklessness, willfulness or wantonness per se. A traffic violation is only evidence of recklessness, willfulness or wantonness. (See Austin, supra.)
It doesn’t necessarily matter if the police blame the pedestrian
One of the first things that happens when an accident involves a pedestrian fatality is a police investigation. It may be distressing for surviving family members to read a police report if the report blames the pedestrian for the accident. Oftentimes, the pedestrian is taken to the hospital before the police arrive, or dies at the scene, so the police only get one-side of the story.
However, a police report is not admissible in a civil wrongful death claim for a pedestrian accident. A police report compiles and references evidence – but it is ultimately the investigating officer’s interpretation of events. By itself, it does not establish fault or the rights of survivors to receive compensation through a wrongful death claim. (South Carolina Rules of Evidence Rule 803(8).)
Both a wrongful death lawsuit and a survival action may be appropriate
South Carolina law separates civil legal actions following a personal injury into wrongful death actions and survival actions. Both causes of action may be appropriate for a pedestrian accident resulting in death. (See South Carolina Death by Wrongful Act; § 15-51-10 et. seq.)
Attorneys for wrongful death lawsuits involving pedestrians
Our attorneys work to recover fair compensation when a wrongful death lawsuit involves a pedestrian. For a free wrongful death case consultation, contact pedestrian accident attorney Mark Bringardner today. We will listen to your story and explain the claims process. We offer contingency fee agreements, so there are never any legal fees or costs unless we recover money for you. Contact us today.