How to handle a lawsuit for a Massachusetts pedestrian accident injury
Massachusetts aims for Vision Zero.
The Massachusetts Vision Zero Coalition works toward an objective of reaching zero pedestrian and bicyclist injuries across the Commonwealth of Massachusetts. The Vision Zero strategy to eliminate traffic fatalities can help reduce the number of accidents, injuries, and fatalities — but there will always be some.
Here’s a look at the number of pedestrian fatalities over the past few years:
Risk factors for pedestrians
Research presented by the Massachusetts Office of Grants and Research indicates that the majority of pedestrian fatalities from motor vehicle crashes take place between 3pm and midnight, and the highest rate of fatalities is October through December.
Other pedestrian injury risk factors include:
- Lack of sidewalks or crosswalks
- Lack of traffic lights
- Poorly lit areas
Law enforcement and other experts encourage pedestrians to use sidewalks and crosswalks where available, avoid walking on road shoulders when it’s dark or poorly lit, and avoid unmarked areas for crossing, especially at night. Pedestrians should also wear light-colored clothes or reflectors in order to make themselves more visible to drivers.
Massachusetts laws for pedestrian crossing
What happens if you’re hit by a car and have extensive medical bills? Do you pay for your treatment, or might the driver be liable for your costs?
Unfortunately, the answer is that it depends.
You’ve heard the phrase “the customer is always right” and perhaps that “the pedestrian always has the right of way.” These are similar concepts, and regardless of if you do or do not agree with them in principle, whether you’re “right” as a pedestrian also matters in the eyes of the law.
Contrary to popular belief:
The pedestrian doesn’t always have the right of way.
You’re not automatically entitled to compensation if you’re a pedestrian who was hit by a vehicle. Not every driver is negligent, just because they’re the driver and you’re walking.
Just like if you’re in a car accident, the injured person can file a lawsuit against the negligent party.
Massachusetts Crosswalk Courtesy law
Courtesy is nice, but in Massachusetts it’s also the law.
A pedestrian has the right of way if they are in the path of a motorist approaching a crosswalk or if they’re within 10 feet of the halfway point across the road.
A motorist may not pass a vehicle that has yielded the right of way to a pedestrian, and may not block a crosswalk.
Jaywalking
Jaywalking (crossing against the light) is illegal in Massachusetts, but the penalty for jaywalking is $1. That’s correct... $1. After your 4th offense, the penalty doubles to $2.
While you might not be concerned about the cost of racking up jaywalking offenses, the main reason to avoid the practice is that it’s still unsafe, even if the penalties don’t seem like much of an issue.
A pedestrian is required to yield to highway traffic and is only permitted to cross at a corner or crosswalk.
How do you know if someone is negligent?
Negligence is defined through these 5 elements:
- Duty. A person has a duty to avoid injuring someone else. Sometimes duty is to a specific person, like a doctor/patient relationship, caregiver/child, or other types of relationships where someone is clearly responsible for someone else’s well-being. But in other situations, a duty can exist between people who’ve never met... the primary example is that a driver has a duty to every other road user—including other drivers, pedestrians and cyclists.
- Breach. When a person fails to uphold their duty, they’re in breach of their obligation. This could either be by action or inaction that results in an injury. In the case of a pedestrian accident, the breach could be a driver’s failure to stop at a stop sign.
- Causation. In order to be found negligent, the breach needs to be the cause of an injury. Continuing with the stop sign example, if a driver fails to stop, they might have breached their duty. But if the pedestrian’s injury was caused by some other factor — like tripping over debris in the crosswalk — then the driver’s breach did not cause the injury.
- Injury. The accident has to have caused an actual injury. You might be annoyed at a close call, or you might be angry that a driver speeding by splashed you with water from a big puddle or startled you and caused you to drop your phone. A water splash or dropped phone — though certainly annoying and inconvenient — are not physical injuries. If you were hit by a car and it results in a broken bone, cuts or abrasions, a head injury, or something similar, you might be eligible to file a personal injury lawsuit.
- Financial loss. Finally, the injury has to have cost you money. The basis of all personal injury lawsuits is that they’re designed to make a plaintiff “whole,” which means to restore them to the financial condition they’d be in if the accident hadn’t happened. In other words, you shouldn’t have to bear the financial cost of your resulting medical treatment or other needs if someone else’s negligence resulted in your being injured.
Pedestrian accident damages
Financial loss (also called “damages”) that can be compensated after a pedestrian-vehicle accident includes:
- Medical treatment, including doctor or hospital visits, prescription medications, surgery, diagnostics like X-rays or MRI, and other items
- Assistive devices like crutches, wheelchair, hearing aids, and prosthetics
- Ongoing occupational, physical, or other therapies
- Pain and suffering or mental distress
- Lost wages or loss of future earning capacity
- Funeral and burial expenses if the injured person has died
- Wrongful death claims if you’ve lost a family member in a fatal pedestrian accident
Massachusetts modified comparative fault rule
Massachusetts follows a modified comparative fault (51%) rule. When determining who’s liable for an injury, the plaintiff (injured person) can only recover damages if they are less than 51% at fault.
If the plaintiff is less than 51% at fault, the amount of damages will be reduced according to their percentage of fault.
Here’s an example:
Milo is admittedly not as alert as he should be as he’s backing out of his driveway onto the sidewalk in front of his home, and he hits Jeffrey as he jogs by, resulting in serious injuries.
However, evidence shows that Jeffrey was watching a video on his phone, with earbuds in both ears, and wasn’t looking where he was going as he ran. In fact, a witness testified that Jeffrey was actually laughing out loud at the video on his phone while running — and definitely not looking for traffic hazards.
The court finds that although Milo was negligent, Jeffrey was 60% at fault for the accident and therefore he couldn’t recover any damages from Milo.
If the court had viewed the evidence differently and found Jeffrey only 40% at fault, he could have received a damage award. If the amount of his medical bills and other expenses was $100,000, the amount he received would be reduced by 40% and he’d get $60,000 in recovery costs.
Non-vehicle pedestrian injuries
Not every pedestrian injury is the result of being hit by a car. You could trip or slip and fall or experience some other type of injury that’s not vehicle-related.
These kinds of accidents might lead to a premises liability claim, which is when your injury is the result of a property defect and not necessarily a person’s behavior.
There are also accidents that could happen with a car but that aren’t the driver’s fault — for instance, poorly designed traffic patterns, poorly placed turn signals or traffic signs, faulty and non-functioning traffic signals, traffic signals hidden by trees or other obstructions, or poor street lighting. These types of accidents could also be part of a premises liability claim.
How to handle a claim against a government agency
For any type of personal injury claim, the first question is who you need to sue. After all, you can’t file a lawsuit if you don’t know who’s responsible for your injury.
As a pedestrian involved in a premises liability claim, you might need to file a lawsuit against a government agency if your accident happened on public property like a sidewalk or roadway.
Usually, roads and sidewalks are maintained by an agency of the state or municipal government. Suing a government agency is procedurally a little different from a lawsuit against a private person or company. First, while a regular personal injury lawsuit in Massachusetts has a 3-year statute of limitations (the amount of time you have from the date of the injury to file a lawsuit), you must file a notice of claim against a government agency within 30 days of the accident. You also must make an official claim within 2 years.
Once your written damage claim is approved, you can file an official complaint. There are additional procedural issues associated with claims against a government agency in Massachusetts, so your best bet is to consult a lawyer for assistance.
10 safety tips for pedestrians
- Always cross at a corner or intersection and use a marked crosswalk where available.
- Yield the right-of-way to a vehicle if crossing where there’s not a marked crosswalk.
- Before crossing, look left, then right, then left again to check for cars.
- Walk facing traffic.
- Obey traffic signals and walk signs.
- Be alert — don’t text or be occupied on your phone while walking.
- If you’re wearing a listening device, either keep 1 ear “free” or the volume low enough that you can still hear outside noise like traffic.
- Wear reflective clothing when walking at night and carry a flashlight.
- Avoid walking while intoxicated; impairment can increase your risk of being hit by a car.
- Walk on the sidewalk or designated walking area where one is available. If there isn’t a sidewalk, stay as far to the left as possible.
What to do if you’re injured in a pedestrian accident in Massachusetts
- Seek medical help. Call 911 for medical help. If you’re unable to do so, ask a driver or bystander to call for you.It’s important to get a medical examination as soon as possible, even if you think your injuries are so minor that you don’t require treatment. Visit your doctor, an urgent care center or a hospital. Symptoms of some injuries might not appear for days or weeks after the accident, so documenting your condition immediately after the accident is crucial for an insurance settlement or legal claim.
- Call the police. A police report is essential and should contain the driver’s information, the facts of the accident, a description of the scene, and other information that will be important to your claim.
It doesn’t necessarily mean the person will face any charges, especially if they weren’t violating any traffic laws. But don’t let them convince you that a police report isn’t necessary. It’s your right (and for your own protection) to get one.
- Obtain witness contact information. Witnesses can be the most valuable tool in a legal claim. Take each witness’s name, phone number, and email address.
- Document the scene. If you’re able to do so, take photos of the road conditions, traffic signals, any damage to the vehicle, and other factors that might have affected the accident.
- Contact a personal injury lawyer. A lawyer has access to reconstruction experts, financial professionals, medical experts, and other experts who can bolster your claim for relief.
The Enjuris personal injury directory can guide you to a Massachusetts personal injury lawyer who can minimize your liability if necessary and seek the highest possible amount of damages for your injuries.
See our guide Choosing a personal injury attorney.