Pedestrian car and motor vehicle accidents tend to cause the most serious injuries of all pedestrian related accidents.
The majority of pedestrian car accidents in New York City occur while the pedestrian is actually in the cross walk. Left hand turn and right hand turn cases generally place the pedestrian with the right of way in crossing where the vehicle is attempting to turn. Pedestrian car accidents also occur in mid-block crossing, or while standing in the Street waiting for a cab. Some pedestrian auto accidents even happen while the pedestrian is on the sidewalk.
When involved in a pedestrian motor vehicle related accident, the pedestrian has two separate claims. The first is a No-Fault claim and the second is a Bodily Injury Liability Claim.
When a pedestrian is physically struck by a motor vehicle the pedestrian is afforded automatic coverage for No-Fault benefits. No-fault benefits provides coverage for basic economic losses, such as necessary medical treatment and a portion of lost earnings – up to 80% of your income or $2,000.00 per month, which ever is less. The No-Fault claim must be filed with a proper No-Fault form (NF-2 Form) with the carrier for the vehicle involved within thirty (30) days of the accident. All medical bills must be submitted to the carrier within forty-five (45) days of given treatment for payment. Minimum coverage in New York State for No-Fault benefits is $50,000.00 per individual.
If the vehicle involved in contact flees the scene of the accident and remains unidentified, then the No-Fault claim must be filed with the insurance carrier for a household vehicle (a motor vehicle registered to anyone in your household related by blood or marriage). If there is no household vehicle, then the pedestrian would have to file a claim with the Motor Vehicle Accident Indemnification Corporation – a statutory entity funded by the insurance industry to provide safety net for minimum coverage benefits to victims of uninsured and hit and run accidents.
BODILY INJURY LIABILITY CLAIM:
The bodily injury claim is the liability claim asserted against the owner and operator of the car involved in the accident. The bodily injury claim seeks to obtain compensation for the pedestrian for all other economic damages not covered by No-Fault and compensation for pain and suffering past and future (to the extent there is a permanent aspect to the injury), as well as compensation for all economic damages, both medical (past and future) and loss of earnings (past and future).
The liability claim is conditioned upon proving fault and a serious injury as defined by the No-Fault law (qualifying injury).
New York State is a pure comparative fault state, in which the finding of fault can be to a matter of degree, all of which must add up to 100%. Fault can be determined based upon the standard of common law negligence or a statutory violation. Common Law negligence is the standard of reasonable care that a ordinarily prudent person in a similar position would have exercised under the conditions then and there existing. Both the pedestrian and the operator of the motor vehicle are held to the standard of reasonable care. The other basis for a finding of fault is based upon a statutory violation. A statutory violation can serve as stronger basis as there is an instruction given to the jury that if a violation of a statute has been found that was a cause of the accident, then the trier of fact must find negligence.
Both a statutory violation and a breach of reasonable care must be a cause of the accident in order to serve as the basis for the finding of liability.
SERIOUS INJURY REQUIREMENT:
In order for a pedestrian to obtain compensation beyond No-fault benefits, the pedestrian in addition to proving fault, must also prove a serious injury as defined by the No-fault law.
The serious injury requirement is commonly known as a “threshold injury”. The term threshold injury comes from the fact that only one injury must meet any one of the recognized categories, then all the injuries are compensable.
Article 51 of the Insurance Law provides that the pedestrian in a motor vehicle related accident
must establish that the pedestrian has incurred a basic economic loss exceeding $50,000 or must establish that he/she has suffered serious injury as defined as follows:
Loss of a fetus
Permanent loss of use of a body organ, member, function or system
Permanent consequential limitation of a body organ or member
Significant limitation of use of a body function or system
Medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
Insurance Law §5102(d).
The categories such as the two permanent injury categories and the significant limitation category is open to a great deal of specific case law interpretation.
Before drawing any conclusions with respect to whether you have sustained a qualified injury, you must speak with an attorney.
If you or someone you know has been injured in New York City as a pedestrian car or other motor vehicle related accident, please contact our office for a free no obligation consultation.
We represent injured pedestrians in Manhattan, Brooklyn, Bronx, Queens and Staten Island.
There is no legal fee unless you get a financial recovery.
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