Pedestrian-Auto Fatalities Soar

The number of fatal pedestrian-auto crashes increased more in 2015 than in any other year on record.

The 10 percent spike comes after years of rather steady declines. Additionally, pedestrians now make up 15 percent of traffic fatalities; in 2005, that figure was only 11 percent. Observers theorize that higher motor vehicle traffic, because of low gas prices, and the rise of distracted driving may be mostly to blame. Moreover, autos are becoming more “crashworthy” and able to keep vehicle occupants alive in collisions, but pedestrians have no such protections. More people may also be walking for economic or health reasons, they opine.

South Carolina has the seventh-highest pedestrian-auto death rate in the country.

Pedestrian Crash Injuries

Statistically, most pedestrian-auto crashes happen at night and away from intersections, and in most cases, vehicle traffic moves a little faster in these circumstances. Speed is one of the most significant factors, in terms of injury severity. In fact, the serious injury rate is only 25 percent at vehicle speeds under 23 mph, but the rate jumps to 90 percent at 46 mph. Some of these serious injuries include:

• Head Injuries: To protect their heads, bikers have helmets and vehicle occupants have seat belts, but pedestrians have neither of these things and are thus totally exposed to the risk of injury. Brain injuries often result in loss of function, and because dead brain cells usually do not regenerate, these injuries are often permanent. Aggressive and lengthy physical therapy is usually the best treatment option, because although such an approach does not heal the injury, it normally teaches nearby areas of the brain to replace the lost functions.

• Broken Bones: These injuries are common in the extremities, since many pedestrians are either wedged between two objects, like two cars, or they are catapulted through the air due to the force of the collision. These severe injuries normally require medical devices, like metal screws or plates, during surgery, and when doctors remove these devices, the victims must undergo extensive physical therapy.

• Internal Injuries: The crushing and jolting impact normally makes internal organs scrape against one another, and these organs have no skin or other protective layer. So, they often bleed profusely, and doctors may not detect such bleeding for several hours or even longer.

Victims are entitled to compensation for both economic damages, such as medical bills, and noneconomic losses, such as pain and suffering. To ensure they get the treatment they need, most personal injury attorneys write letters of protection on behalf of victims, so third-party medical providers will treat them without upfront cost.

Pedestrian Crash Causes

Alcohol is a factor in almost half of pedestrian-auto crashes, an incredibly high proportion. Since the tortfeasors (negligent drivers) are nearly always uninjured in these cases, because they are inside steel, glass, and plastic cocoons, first responders can normally administer BAC breath or blood tests and charge the tortfeasors with DUI, if appropriate. If there is a criminal prosecution, the negligence per se (negligence “as such”) rule normally comes into play. Most negligence plaintiffs must establish five elements — duty, breach, cause-in-fact, proximate cause, and damages. But in negligence per se cases, the plaintiff must only establish that:

• The tortfeasor violated a safety statute, like DUI, and
• Said violation caused the car crash.

Negligence per se saves time during the case in chief, and under South Carolina law, this type of negligence also creates a presumption in favor of punitive damages. These additional damages punish the tortfeasor for wrongful conduct and deter future wrongdoing, and both these interests are present in alcohol-related crashes, especially if the tortfeasor had a very high BAC level. To receive punitive damages, plaintiffs must produce clear and convincing evidence that the tortfeasors intentionally disregarded a known risk, by drinking heavily or otherwise. A damages cap may apply.

In criminal court, DUI cases are very hard to prove without BAC tests, because prosecutors must prove guilt beyond a reasonable doubt. But in civil court, the burden of proof is only a preponderance of the evidence, or “more likely than not.” This difference is very significant in alcohol-related crashes, because if plaintiffs prove consumption, jurors may conclude that, more likely than not, the tortfeasors were also impaired. Consumption evidence includes:

• Erratic Driving: Failure to maintain a single lane indicates that the driver is unable to control the vehicle, and operating at a very low speed indicates that the driver is disoriented. In criminal court, weaving in a single lane and driving at a low speed may not be cause for officers to stop a vehicle, but in civil court, these things are evidence of consumption.

• Bloodshot Eyes: Although many things other than alcohol, such as fatigue, can cause bloodshot eyes, there is a low standard of proof in civil court, ad therefore this evidence is often compelling.

• Odor of Alcohol: The scent only proves consumption, but victims only need to establish consumption in civil court.

Impairment usually begins with the first drink, so one beer, glass of wine, or other serving is enough to establish liability.

Insurance Company Defenses

Alcohol goes both ways in pedestrian-auto crashes, because impairment is often a factor among pedestrians as well. If both parties are partially at fault, the jury must divide liability on a percentage basis. South Carolina is a modified comparative fault state with a 51 percent bar, so victims are entitled to recovery as long as the tortfeasors were at least 51 percent responsible for the crash.

Rely on an Experienced Attorney

Speed and alcohol are usually a deadly combination in pedestrian-auto crashes. For a free consultation with an experienced personal injury attorney in Charleston, contact David Aylor Law Offices. We normally do not charge upfront legal fees in personal injury cases.