On Foot, Two or Four Wheels: Beware of Risks and Liability
Bicycle and pedestrian accidents are at an all time high on Cape Cod during the summer. Picture this. You and your family are enjoying a week of Cape Cod sand, sunshine and the beloved lobster rolls from the infamous Raw Bar at New Seabury in Mashpee. The streets and byways are packed to the rim, with 500 vacationers swarming upon a town that off-season accommodates 20 residents. There’s a happy energy in the air, which smells of sunscreen and fried clams as everyone clamors to enjoy the quick weeks of summer.
But with the droves of distracted vacationers treading throughout unfamiliar territory and a town structure well over capacity, your dreamy summer vacation can quickly go awry when an automobile accident takes place.
Think about the cadre of distractions that exist. There are strollers with babies, dogs, kids scrambling about, folks under the influence, teens texting, heavy vehicle traffic, and turkeys and other wildlife crossing the road. It’s all the ingredients for an accident – and those accidents do happen.
Be Nice Look Twice
Obviously, prevention and an added awareness of your surroundings is key. As one can boldly see traveling from Mashpee to Falmouth on Route 28/Old Falmouth Road smack dab in front of the East Falmouth Fire Station #5, where a big bold sign alternating flashes of ‘Watch 4 Bikers & Walkers’ and ‘Be Nice Look Twice’. But when accidents occur, especially in the case of a car hitting a pedestrian or bicyclist, the quintessential summer vacation can quickly collapse with devastating outcomes.
I occasionally represent drivers in such vehicle-hits-pedestrian situations, and here’s why. From a legal perspective, the driver is not always at fault. In fact, pedestrians do need to abide by the rules of the road just as much as drivers; they, too, must follow safety rules.
If the pedestrian is walking on the wrong side of road and gets hit by car, the driver is not necessarily at fault. The same would be true if a pedestrian is walking in the road when there are pedestrian-only pathways available, as is the case at Mashpee locales, like New Seabury and its popular Popponesset Marketplace, a collection of restaurants, shops and amusements that attracts droves of tourists. Or at the hustling Mashpee Commons or Deer Crossing shopping hubs.
In a driver-hits-pedestrian case like this, the legal strategy for defending the driver involves convincing the jury that the plaintiff (the pedestrian that was struck) was negligent by more than fifty percent.
Determining Who’s at Fault
I would take that case because the plaintiff had an opportunity to avoid the roadway entirely and walk in the safe, vehicle-free pedestrian paths alongside the road; in other words, the pedestrian was comparatively negligent and at fault in the accident. After presenting evidence of such, the jury would address these questions to determine the case’s outcome.
- Was the driver negligent? And was the driver’s negligence the proximate cause – the substantial contributing factor – in causing the pedestrian injury?
- Was the pedestrian negligent? Was the pedestrian putting him/herself, as well as drivers, at risk by walking in the road when there were safe alternatives?
- What percentage should be assigned to the plaintiff and the defendant around who was at fault?
The outcome very much depends on the last bullet – the percentage assigned by the jury to the plaintiff based on comparative negligence. For example, if the plaintiff and defendant are found equally at fault, 50/50, the plaintiff recovers half of whatever the verdict was. If the driver is found 60 percent at fault, the plaintiff recovers 60 percent. If the plaintiff is found to be 51 percent at fault, the plaintiff takes nothing
East Falmouth Fire Department Station #5
on Route 28/Old Falmouth Road
While we all hope no one gets injured on the roads of Cape Cod, it’s important to, first and foremost, be especially aware and cautious when walking, bicycling and driving in congested areas and to, second, know that pedestrians do not have carte blanche to walk wherever they chose, putting themselves at risk and at fault if an accident takes place.