Driver Strikes and Kills Pedestian in Cicero, Onondaga County, New York.

pedestriancrossing.jpgToday I read news reports that, on Friday evening, December 5, a woman drove her car into a pedestrian in Cicero, Onondaga County, New York. Twenty-nine-year-old Leann Doyle of Canastota struck 51-year-old Joanne Schoenfelder of Bridgeport while she was standing in front of a residential mailbox on Route 298. The car accident happened at about 7:30 p.m. The Ciceroauto accident victim was taken by ambulance to SUNY (University Hospital) in Syracuse where she was pronounced dead. It is not clear whether the pedestrian killed by the car was standing in the roadway or on the shoulder.

I didn’t read these news reports like a NORMAL person. Instead, by force of habit, my personal-injury-lawyer brain began dissecting and analyzing them as I read. Let me share with you my legal thoughts as I read of this tragic accident.

First, without knowing more about this case, it is hard to determine whether the driver, pedestrian, or both were at fault. If the pedestrian’s family files a claim for wrongful death and conscious pain and suffering against the driver, the jury will be allowed to tag each side for its percentage of fault. This directly affects the verdict. For example, if the jury determines the case is worth $1,000,000, and that the driver was 70% at fault, but the pedestrian was 30% at fault, the plaintiff (pedestrian’s family) would end up with only 70% of the $1,000,000, which is $700,000. The verdict is “discounted” to the tune of the victim’s percentage of fault.

In this Cicero case, what would make the pedestrian “at fault”, at least a little? Perhaps she was standing out in the roadway, rather than on the shoulder, or was wearing dark clothing (it was night time), or was standing with her back to traffic, or was talking on her cell phone, was distracted, was not watching traffic, etc. Believe me; the driver’s insurance company lawyer will be combing the evidence for such arguments.

I also thought about how the proof would go at trial. Obviously, the dead pedestrian can’t testify. The driver is thus the only living eye witness to the accident. Surely she will give testimony favorable to herself. Won’t this make it easy for the driver’s insurance company to beat the pedestrian’s claim?

Not so fast. New York State courts have adopted a rule known as “the Noseworthy Doctrine” (first established in the case of Noseworthy v City of New York, 298 NY 76), which permits the jury to draw an inference in favor of the dead victim of a car accident such as this one. Since the dead victim can’t speak for herself, the law allows the jury to tip the scales a little in her favor.

The physical evidence at the scene may also help the pedestrian’s case. For example, the length and location of the skid marks can help determine the speed and location of the car in the roadway, and the physical damage to the car and injuries to the pedestrian can help determine the location of the pedestrian.

In sum, this pedestian’s family needs to quickly retain a good wrongful death lawyer who understands New York State motor vehicle accident law and how to properly investigate such claims.

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