Pedestrians also have responsibilities under the right-of-way law, including:
- Not suddenly leaving the curb to enter traffic and creating a hazard
- Obeying walk and traffic signals and using crosswalks
- Yielding to vehicles when attempting to cross where there is no crosswalk
- Not walking on a road unless there is no sidewalk or shoulder and walking as close to the edge as possible, facing oncoming traffic
- Not walking on a roadway while under the influence of drugs or alcohol
- Obeying all railroad and bridge gates and other barriers
How is Fault Determined in a Pedestrian Accident?
If drivers and pedestrians alike owe others a duty of care, then the party that fails to uphold their duty of care is negligent and potentially at fault for any accident that occurs as a result.
Illinois law uses a modified comparative negligence rule which allows apportionment of fault to multiple parties. Settlements and jury awards are reduced by a party’s percentage of fault. If any party is found to be 51% or more at fault, that party is excluded from pursuing a claim against another party to recover any damages for injuries.
Example: You are a pedestrian found to be 20% at fault, the driver of the vehicle in the accident is 80% at fault, and the driver has $100,000 in bodily injury liability insurance. If awarded the policy limit, your recovery would be decreased by your percentage of fault, meaning you would receive $80,000.
What Damages Can I Recover?
Illinois law allows plaintiffs to recover economic damages, non-economic damages, and — in some cases — punitive damages.
Economic damages include easily quantifiable damages such as medical expenses, lost income, and in the case of a wrongful death claim, funeral expenses and loss of future financial support.
Non-economic damages can be more difficult to assign a dollar amount to, but they usually make up the bulk of the harms and losses our clients suffer. Non-economic damages include pain and suffering, emotional distress, loss of enjoyment, physical impairment or disfigurement, and loss of companionship.
Punitive damages are reserved for cases in which the at-fault driver acted intentionally or "willful and wantonly." Willful and wanton conduct occurs when someone acts recklessly or with a conscious disregard for the safety of others. While economic and non-economic damages are compensatory (intended to make a plaintiff whole or to make up for what was taken from them) punitive damages are intended to punish the defendant and to deter reckless behavior.
What Steps Should I Take?
The first step you should take is to seek medical attention at the scene. You will also want to obtain contact and insurance information from the vehicle driver and contact information for any witnesses to the incident. You should then consult with an experienced personal injury attorney. Your attorney can assess your claim and counsel you regarding the legal process.
If you were a pedestrian and injured due to the negligence of a vehicle operator, you will need to file a claim against the driver’s auto insurance bodily injury coverage. Typically, the injured party or their attorney will attempt to negotiate a settlement with the insurer, but if the insurer is unwilling to settle for fair compensation, or if you are nearing the two-year statute of limitations for personal injury claims in Illinois, a lawsuit must be filed to preserve the injured person's right to a recovery.
It is important to note that the statute of limitations can be different based on the type of case, who the defendant is, and who the plaintiff is. For instance, a plaintiff who is a minor has until their 20th birthday to settle or file suit (though it is better to move quickly most of the time since evidence and witnesses' memories become more difficult to retrieve the longer you wait). If a municipality is a defendant, there may be a one-year statute of limitations. Failing to settle or file a lawsuit within the statute of limitations will usually completely kill your case. Don't risk losing your claim on a technicality, a lawyer can tell you the statute of limitations in a free consultation.
If your loved one was incapacitated or died as the result of being hit, you should consult with an attorney immediately to file a wrongful death action against the negligent party.
Thoroughly investigating the traffic accident to establish fault and allowing the time it may take to know the full extent of your injuries are critical factors in any claim for compensation. An experienced and knowledgeable personal injury attorney is your best option to handle these tasks on your behalf, negotiate with insurers, or — if necessary — litigate your claim in court.