The short answer is yes, you are likely able to sue a driver for running you over. However, filing a lawsuit and actually receiving compensation are two very different things. The success of your claim depends on proving that the driver was negligent, not just that they hit you.
In California, the law does not automatically punish a driver simply because a pedestrian was injured. Instead, the law looks at whether the driver breached a specific duty of care owed to you at that moment. This is a subtle but distinct difference that dictates how these cases unfold.
At Banderas Law, we investigate the specific breach of duty to determine if the driver’s actions meet the legal threshold for negligence. If you have questions about your rights, we invite you to contact us for a free consultation.
Key Takeaways for Pedestrian Accident Claims
- Proving negligence is the foundation of your case. Simply being hit by a car is not enough to win a lawsuit; we must demonstrate that the driver violated a specific duty of care, such as speeding or being distracted.
- You can recover money even if you were partially at fault. California's pure comparative negligence rule means your compensation is reduced by your percentage of fault, but you are not barred from recovery unless you were 100% to blame.
- Identifying all available insurance is essential for full compensation. The driver's minimum policy may not cover your bills, so we investigate other sources, like the driver's employer or your own Uninsured/Underinsured Motorist coverage.
Establishing Liability: It Is More Than Just Being Hit
To win a lawsuit against a driver, you must prove they were negligent. In legal terms, this boils down to proving they failed to act as a reasonably prudent driver would under similar circumstances.
Negligence comprises four distinct elements: Duty, Breach, Causation, and Damages. If any one of these is missing, the claim fails.
Duty of Care in Ontario, California
Every driver in California owes a duty of care to pedestrians. However, this duty is heightened in specific environments. Ontario is a heavy traffic zone, with busy corridors like Archibald Avenue and the areas surrounding Ontario Mills.
Drivers in these areas are expected to be hyper-vigilant. The law recognizes that a pedestrian is vulnerable against a 4,000-pound vehicle. Therefore, the driver’s duty to look out for you is generally higher than your duty to look out for them, specifically when you are lawfully occupying a roadway or crosswalk.
Breach of Duty and Negligence Per Se
The strongest way to prove a breach of duty is by utilizing the concept of negligence per se. This applies when the driver violates a specific safety statute intended to protect people like you. If we can prove they broke a traffic law, the court presumes they were negligent.
Common statutory violations in pedestrian cases include:
- CVC 21950 (Right-of-Way in Crosswalks): Drivers must yield to pedestrians crossing the roadway within any marked or unmarked crosswalk.
- CVC 22350 (Basic Speed Law): A driver cannot drive faster than is reasonable given the current weather, visibility, and traffic conditions, regardless of the posted speed limit.
- CVC 23152 (DUI): Driving under the influence of alcohol or drugs.
- Distracted Driving: Using a handheld device while operating the vehicle.
Res Ipsa Loquitur: When the Thing Speaks for Itself
There are rare scenarios where the negligence is so obvious that the burden of proof shifts. This is known as res ipsa loquitur, which translates to "the thing speaks for itself."
Consider a scenario where you are walking on a sidewalk, and a car jumps the curb and strikes you. Cars do not typically mount sidewalks unless the driver is negligent (or there was a mechanical failure). In this case, you do not necessarily need to prove the driver was texting or speeding. The fact that the car was on the sidewalk creates a presumption of negligence that the driver must then disprove.
Proving Causation
The insurance company may argue that while the driver was negligent (e.g., speeding), that negligence didn't cause your injury. They might argue you darted out so suddenly that even a driver going the speed limit could not have stopped.
This is where forensic evidence becomes necessary. We subpoena cell phone records to see if a text was sent moments before impact, or pull black box (ECU) data to determine the exact speed at the time of the crash. Proving the breach occurred before the impact is required to link the driver's actions to your injuries.
What If I Was Jaywalking? Understanding Comparative Negligence
One of the most common questions we hear from clients is, "I was crossing mid-block, so I can't sue, right?" This is a misconception that insurance adjusters are happy to let you believe.
In California, you typically do not lose your right to sue just because you were partially at fault. We operate under a system called pure comparative negligence.
How Pure Comparative Negligence Works
Under this system, a jury or judge assigns a percentage of fault to every party involved in the accident. As long as you were not 100% at fault, you can recover damages. However, your total compensation is reduced by your percentage of fault.
The Dart-Out Defense
Insurance companies favor the dart-out defense. They may argue that the accident was unavoidable because you stepped into the street suddenly. They use this to argue that your fault percentage should be high—perhaps 50% or more.
We counter this by reconstructing the line of sight. Even if a pedestrian is jaywalking (crossing outside a crosswalk), the driver still has a duty to avoid a collision if possible. If the road was straight, the lighting was good, and the driver had 500 feet of visibility, they should have seen you.
If they failed to see a pedestrian in the middle of the road, it suggests they were distracted. At that point, your location becomes less relevant than their failure to keep a proper lookout. We fight to ensure the blame is placed where it belongs: on the operator of the dangerous machine.
Identifying the Defendant: Who Are You Actually Suing?
When you file a lawsuit, the name on the complaint might be the driver's, but the financial target is usually an insurance policy. A major issue in California is that many drivers carry only the state minimum liability coverage, which is $15,000 for injury to one person.
In a pedestrian accident involving broken bones or internal injuries, medical bills could exceed $15,000 in the first 24 hours. Therefore, identifying the correct defendant and the correct insurance policy is mandatory for a full recovery.
Vicarious Liability (Employer Liability)
Ontario is a logistics hub. A significant number of vehicles on our roads, such as delivery vans, semi-trucks, and sales representatives, are being driven for work purposes. If the driver who hit you was in the course and scope of their employment, you can sue their employer.
This triggers the doctrine of respondeat superior. This is significant because commercial insurance policies typically have limits of $1 million or more. We investigate to see if the driver was on the clock, delivering a package, or running a work errand at the time of the crash.
Permissive Use
What if the driver was borrowing a friend’s car? In California, liability commonly follows the vehicle. If the owner of the car gave the driver permission to use it, the owner may be held liable for the driver’s negligence, up to statutory limits.
This effectively opens up a second insurance policy (the owner’s policy) in addition to the driver’s own insurance.
Government Liability
In some cases, the driver isn't the only one at fault. The road itself may be the problem. If a crosswalk signal was malfunctioning, a street light was burnt out for weeks, or a designated crossing was designed dangerously, the City of Ontario or Caltrans might share liability.
However, suing the government is strictly regulated. Under the California Tort Claims Act, you generally have only six months from the date of the accident to file an administrative claim. If you miss this deadline, you are usually barred from suing the government forever. This timeline is unforgiving.
The Role of Insurance in Pedestrian Cases
There is a hierarchy of coverage that we look for when handling pedestrian claims.
Bodily Injury Liability
This is the primary source of funds, and it comes from the at-fault driver's auto insurance policy. As mentioned, we must determine the policy limits immediately. If the damages exceed the limits, we must look elsewhere.
Uninsured/Underinsured Motorist (UM/UIM)
This is the most overlooked source of recovery. If you have car insurance, your policy likely includes Uninsured/Underinsured Motorist coverage. This coverage typically protects you even when you are walking.
If the driver who hit you has no insurance (Uninsured), or if they have only $15,000 in coverage and your bills are $50,000 (Underinsured), you can file a claim against your own policy. Using this coverage does not usually raise your premiums, as the accident was not your fault. It is coverage you have already paid for; we ensure you utilize it.
Medical Payments (MedPay)
Some auto policies have a MedPay provision. This acts like health insurance for auto accidents, paying out a set amount (e.g., $1,000 to $5,000) for medical bills regardless of who was at fault. This may provide immediate relief for co-pays or deductibles while the larger lawsuit is pending.
The Lien Process
While the lawsuit is ongoing, your private health insurance (like Kaiser or Blue Shield) or Medi-Cal may pay your hospital bills. However, they will assert a lien on your future settlement.
Basically, they want to be paid back. We negotiate these liens downward because by law, we can reduce the amount you have to pay back to the health insurer, which puts more money into your pocket at the end of the case.
Calculating Damages for Catastrophic Injuries
When we determine the value of a case, we look at how the injury has altered the trajectory of your life. Damages fall into two categories: Economic and Non-Economic.
Economic Damages
These are the mathematical losses. They include past medical bills, the estimated cost of future surgeries or therapy, and lost wages. If you are permanently disabled and cannot return to your previous career, we calculate the loss of earning capacity—the difference between what you would have earned and what you can earn now.
Non-Economic Damages
These damages cover subjective losses: pain and suffering, emotional distress, and loss of enjoyment of life. California does not have a cap on pain and suffering damages in most personal injury cases (excluding medical malpractice). This figure is argued based on the severity of the trauma.
The Eggshell Plaintiff Rule
Defense attorneys sometimes argue that a client's injuries are only severe because they were already frail or had a pre-existing condition (like osteoporosis or a bad back). They try to discount the claim based on your medical history.
The law rejects this through the Eggshell Plaintiff doctrine. This legal principle states that a defendant must take the victim as they find them. Even if you were more one susceptibility to injury than the average person, the driver is liable for the full extent of the damage they caused. They do not get a discount because you were vulnerable.
FAQ for Pedestrian Accidents
Can I sue if I was hit by a car while working?
Yes, but it becomes a hybrid case. You would likely file a Workers' Compensation claim (which covers medical bills and partial lost wages immediately) and a third-party personal injury lawsuit against the driver (which covers pain and suffering). These claims run parallel to each other, and we handle the interaction between the two to ensure you do not inadvertently surrender your rights in one by settling the other.
How long do I have to sue in California?
Generally, the Statute of Limitations for personal injury in California is two years from the date of the accident. However, if a government entity (like a city bus or a city-owned vehicle) is involved, you must file a government tort claim within just six months.
What if the driver claims I came out of nowhere?
Coming out of nowhere is a standard defense, but it is rarely true. We use forensic evidence and line-of-sight analysis to prove the driver had sufficient time to react. If you were visible for even a few seconds, the driver had a duty to yield or brake.
Do I have to pay my medical bills while the lawsuit is pending?
You are responsible for your bills, but there are ways to manage them. We can provide medical providers with a Letter of Protection, asking them to hold off on collections until the case settles. Alternatively, you can use your health insurance. The bills are ultimately resolved from the settlement funds.
Is the driver liable if they had a medical emergency (e.g., heart attack) while driving?
This is known as the sudden emergency doctrine. It is a valid defense, but the driver must prove the emergency was unforeseen. If the driver had a history of seizures or heart conditions and chose to drive anyway (against medical advice), they could still be held liable for negligence.
Don't Let the Insurance Company Decide What Your Recovery Is Worth
The legal system allows you to seek compensation, but it does not give it to you automatically. You must demand it, and you must prove you are entitled to it.
If you have questions about your medical bills or liability after being struck by a vehicle, call Banderas Law for a free consultation. We will analyze the facts and tell you exactly what is required to secure your future.