The first weekend in August was deadly on I-35, headed through Austin. Around 9:30 PM on August 3, 2017, a young woman in her thirties was struck and killed while crossing the road. Her identity was not released, nor was her motivation for being on the road at the time made clear. While highway deaths are sadly an everyday occurrence, it is somewhat more unusual for a pedestrian to be crossing an interstate highway. It gives rise to good questions about the frequency of pedestrian accidents in and around Austin, and what to do if you find yourself in such a situation.
The Duty of Care in Negligence Law
When an auto accident results in injury or death, the person affected (or their loved ones) may be able to bring suit under a theory of negligence law or wrongful death, which is essentially a subset of negligence law. Either way, one central question that must be asked is whether the defendant in the suit owed a duty of care to the plaintiff, and if so, did they breach it. There are four tenets to any negligence case – the existence of a duty, the alleged breach of that duty, a showing that the defendant’s conduct caused the accident, and a showing of tangible harm suffered by the plaintiff. If no duty of care exists, the rest of the criteria are moot.
Texas law is quite specific when discussing the duty of care owed to pedestrians, but it is also important to note that pedestrians also owe a duty of care toward drivers and other pedestrians. For example, drivers must yield the right-of-way to a pedestrian in many situations, such as if the pedestrian is in a crosswalk or if there is no traffic light to govern when one may cross. But Sec. 552.005 of the Texas Transportation Code explicitly states that drivers retain the right of way when a pedestrian is crossing a road outside a crosswalk or marked intersection. One can assume, given the paucity of crosswalks on interstate highways, that the pedestrian was crossing outside any crosswalk or marked intersection – while such events would not absolve the driver of all fault, it is worth noting all the same.
Comparative Fault in Texas
If you or a loved one have been involved in a pedestrian accident, and decide to bring suit, you have a decent chance of prevailing in court if you are able to establish the four criteria for negligence to have occurred. However, in Texas, it is generally accepted that a court will assign some degree of fault to both parties, even if it (or a jury) decides that the defendant was at fault overall. This system is referred to as comparative fault because it is a rare thing for one party to be truly blameless in an accident. This does not mean that any recovery is jeopardized, though it does mean that it will likely be reduced by your percentage of fault.
For example, if you sue an allegedly negligent driver, prevail in court and are awarded $100,000 in damages, but you are deemed to be 20 percent at fault for your own injuries, your total recovery will be $80,000 – the award amount minus the 20 percent that was your fault, since paying one for their own mistakes is against state public policy. The I-35 pedestrian may have a family who would be able to bring suit against the driver for her death, given that adults are often family breadwinners, and the sudden loss of income can cause serious problems for that person’s dependents.
Ask Our Pedestrian Accident Attorneys
While so many pedestrian accidents are avoidable, too few of them are actually avoided. If you or a loved one have been involved in one, you may be eligible for compensation. The knowledgeable New Braunfels car accident attorneys at the Bettersworth Law Firm are happy to try and assist you with your case. Contact the office today to set up an appointment.