Son hit by car out of crosswalk - Alameda County, CA

[vparilla]

My two sons (11 & 9) were crossing the street outside of the crosswalk and were hit by a car. My eldest suffered from a huge hematoma on his head and a couple of scrapes and bruises. The police report shows that my sons were the cause of the accident for "running out in the street". Now the driver is asking that we pay for damages to their car. Is this legal and do we have any recourse? We were under the impression that the pedestrian has the right of way, even if not in a crosswalk. We were actually hoping to seek compensation for the medical bills (ambulance, ER stay, etc.)

 

[CdwJava]

The police report shows that my sons were the cause of the accident for "running out in the street".

That's not good.

Now the driver is asking that we pay for damages to their car. Is this legal and do we have any recourse?

He can ASK you to repaint his house, too ... his asking does not mean you have to say, 'Yes." Though it's likely he WILL have a viable claim if your boys are at fault ... which, apparently, they are.

We were under the impression that the pedestrian has the right of way, even if not in a crosswalk.

Not quite. Pedestrians don't get to just run out in the street in front of cars.

CVC 21950(b)This section does not relieve a pedestrian from the duty of
using due care for his or her safety. No pedestrian may suddenly
leave a curb or other place of safety and walk or run into the path
of a vehicle that is so close as to constitute an immediate hazard.
No pedestrian may unnecessarily stop or delay traffic while in a
marked or unmarked crosswalk.
​

We were actually hoping to seek compensation for the medical bills (ambulance, ER stay, etc.)

You can make that request to the driver or his insurance company ... with the police report, it is likely they will decline your request, however. Hopefully you have medical insurance that can cover this.

- Carl

 

[vparilla]

Thanks for the response. I did not witness the accident and neither did the officer who wrote the report. Based on my son's account, it was clear to cross as all traffic was stopped at a red light. He didn't just run out into the street without checking if it was clear first. The driver decided he wanted to make a right turn and that's when he hit my son. Does the police report override what my son's account of the events that took place? I listened to the officer question my son and he was definitely putting words in his mouth and leading him to agree with whatever he said. I feel that this is unfair.

 

[CdwJava]

Thanks for the response. I did not witness the accident and neither did the officer who wrote the report.

No, but it is pretty clear that if a pedestrian outside a marked or unmarked crosswalk should cross the street, they are required to do so safely. If the pedestrians crossed and were struck, the presumption is that they walked into the path of a vehicle close enough to constitute a danger (pursuant to CVC 21950(b)). The collision would thus be a prima facie case of an unsafe act on the part of the pedestrians.

Based on my son's account, it was clear to cross as all traffic was stopped at a red light. He didn't just run out into the street without checking if it was clear first.

He still did not have the right of way. And if he were that close to the intersection, he should have crossed at the light within the marked or unmarked crosswalk.

The driver decided he wanted to make a right turn and that's when he hit my son. Does the police report override what my son's account of the events that took place?

The report is no direct evidence, but it will carry a lot of weight with the insurance adjuster. And, being that his insurance does not want to pay out, they will point to that as their justification for no liability. If you want to try and compel payment, you will have to hire an attorney of your own and hope that he can make a convincing case to the civil court. The other company might just decide to cut you a check since it might be cheaper than going to trial, but that's far from certain.

I feel that this is unfair.

Well, your boys did not have a right to be in the road. The law does NOT grant pedestrians the right of way anywhere but within a crosswalk when crossing properly.

21950. (a) The driver of a vehicle shall yield the right-of-way to
a pedestrian crossing the roadway within any marked crosswalk or
within any unmarked crosswalk at an intersection, except as otherwise
provided in this chapter.
(b) This section does not relieve a pedestrian from the duty of
using due care for his or her safety. No pedestrian may suddenly
leave a curb or other place of safety and walk or run into the path
of a vehicle that is so close as to constitute an immediate hazard.
No pedestrian may unnecessarily stop or delay traffic while in a
marked or unmarked crosswalk.
(c) The driver of a vehicle approaching a pedestrian within any
marked or unmarked crosswalk shall exercise all due care and shall
reduce the speed of the vehicle or take any other action relating to
the operation of the vehicle as necessary to safeguard the safety of
the pedestrian.
(d) Subdivision (b) does not relieve a driver of a vehicle from
the duty of exercising due care for the safety of any pedestrian
within any marked crosswalk or within any unmarked crosswalk at an
intersection.​

While a civil court is not obligated to follow the recommendation of the investigating officer, CA law is pretty clear that the boys were not legally crossing the road and that their presence is what caused the collision.

If your bills are significant enough and you do not have medical insurance, you might consider consulting an attorney. However, if you DO have medical insurance THEY will be the ones who might seek compensation as they will be the ones out the lion's share of the money. Any award you might get would go to the insurance company and to pay off any medical bills ... you'd get anything that might be left over.

- Carl

 

[PILawGirl]

Not to mention the personal injury attorney's fees that would be taken out of a settlement that would more than likely be reduced because of comparitive negligence only if the attorney could convince the drivers insurance company their insured was responsible for any of it.