What can we do after a pedestrian jaywalking killed by hit-and-run driver? 52 Answers as of July 10, 2013

Last month very late at night, my brother was jaywalking. He was hit and killed by a hit and run driver, who was apprehended at his home a few blocks away. The police reports states that my brother was left dying in the middle of the road for several hours, until the next morning when patrol officers on their beat happened upon the dead body. Although my brother was jaywalking, could we be successful in a civil suit?

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
The Law Office of Eric R. Chandler, P.C., L.L.O.
The Law Office of Eric R. Chandler, P.C., L.L.O. | Eric R. Chandler
It really depends. Not solely based on the fact the driver was intoxicated; however, if there is an argument that drinking aside the driver was negligent (i.e. driving too fast, not keeping a proper lookout, etc.) then possibly. You should speak to a personal injury lawyer about the case.
Answer Applies to: Nebraska
Replied: 7/13/2011
The Law Office of Josh Lamborn, P.C.
The Law Office of Josh Lamborn, P.C. | Josh Lamborn
Despite the fact that your brother was jaywalking you could be successful. It depends on the analysis of the case after a look at all of the facts. A competent personal injury lawyer would want to know what the lighting and weather conditions were, whether the driver was intoxicated, how fast he was traveling, how anyone knew whether your brother really was jaywalking or not, etc. prior to telling you what your chances would be on a wrongful death lawsuit. In Oregon the wrongful death statute controls who the beneficiaries are in a wrongful death lawsuit. Unfortunately, siblings are not included. However, if your brother had no other living relatives that are listed (spouse, children, parents) then it could enure to your benefit.
Answer Applies to: Oregon
Replied: 7/12/2011
The Lucky Law Firm, PLC
The Lucky Law Firm, PLC | Robert Morrison Lucky
So sorry to hear about your brother. There is a possibility that you could be successful if a suit is brought against the person responsible for your brother's death and his insurance company. There are several issues that must be flushed out first. Unfortunately, the situation is too complicated for a reply to this inquiry.
Answer Applies to: Louisiana
Replied: 7/13/2011
ROWE LAW FIRM
ROWE LAW FIRM | Jeffrey S. Wittenbrink
You may very well be successful in a civil trial, and should consult an attorney right away. Just because your brother was jaywalking does not mean that the driver was not at fault. He may not have died or may have been able to have been saved, but for the actions of the driver. There is also the issue of fault to begin with-jaywalking does not necessarily mean that the accident was only because of your brother's actions. Depending on conditions, speed, etc. there are many ways the driver could be found to be negligent in causing your brother's death.
Answer Applies to: Louisiana
Replied: 7/12/2011
Ackley Law Group, PLLC
Ackley Law Group, PLLC | Andrew N. Ackley
That's an unbelievably terrible thing that happened to your brother. Even though your brother was jaywalking, Washington is a "comparative fault" state, meaning that a jury apportions fault between the plaintiff and/or defendant(s) based on the amount they believe each was at fault. The total damage award is then reduced by the percentage the plaintiff is at fault. A driver can't just run over someone who is there to be seen in the middle of the road just because the pedestrian is not in a crosswalk. So the driver often shares part of the fault. In addition, the driver has a duty to stop and assist someone he hurts. If your brother would not have died if the driver had done the right thing and stopped, the driver is probably responsible for his death. The driver is also responsible for your brother's agony in the middle of the road before he died.
Answer Applies to: Washington
Replied: 7/12/2011
    Law Offices of Earl K. Straight
    Law Offices of Earl K. Straight | Earl K. Straight
    Although jaywalking will present a liability issue, and may result in some contributory negligence on behalf of your brother, it does not necessarily defeat the claim, as long as your brother is not found more than 50% at fault. I would advise you speak with an attorney immediately about pursuing this claim. I would also like to know why the driver fled the scene. In my experience, when someone flees an accident scene, they have either been drinking, or they have some other legal issue, like an outstanding warrant or suspended drivers license, that makes them want to avoid the police at all costs.
    Answer Applies to: Texas
    Replied: 7/12/2011
    Wilson & Hajek, LLC
    Wilson & Hajek, LLC | Eddie W. Wilson
    If his life could have been saved by immediate medical attention then you have an action against the person who left him there to die.
    Answer Applies to: Virginia
    Replied: 7/12/2011
    Patrick M Lamar Attorney
    Patrick M Lamar Attorney | Patrick M Lamar
    I believe it is possible you could be successful.
    Answer Applies to: Alabama
    Replied: 7/4/2013
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    Probably so. The question is whether the driver is collectible. My experience suggests that a driver, under these circumstances, usually does not have any car insurance to cover the accident. The police report would indicate whether the driver had insurance coverage. If you do pursue this matter, you will definitely need a lawyer as this will get complicated. One of the first steps, other than retaining a lawyer, is to open an estate for your brother so a personal representative can be appointed to act on behalf of his estate.
    Answer Applies to: Michigan
    Replied: 7/12/2011
    Paul Whitfield and Associates P.A.
    Paul Whitfield and Associates P.A. | Paul L. Whitfield
    In NC there is an old common notion called contributory negligence which means that if you contribute to an injury by your own negligence you cannot recover. You might be able to force a settlement however. I had this same case some years ago and got a few thousand dollars to help a widowed mother.
    Answer Applies to: North Carolina
    Replied: 7/12/2011
    Ramunno & Ramunno, P.A.
    Ramunno & Ramunno, P.A. | Lawrence A. Ramunno
    It is a difficult case but you should get police report and discuss with a lawyer.
    Answer Applies to: Delaware
    Replied: 7/10/2013
    Dearbonn Law Offices
    Dearbonn Law Offices | Ajibola Oluyemisi Oladapo
    Contributory negligence: Your brother's estate may recover based upon his contribution to the accident. lets look at this hypothetical to drive the point home, e.g. if recovery is 100% and the court finds him 40% at fault for jaywalking, then he recovers only 60%. He cannot recover the full amount because he contributed to the accident by jay walking, but will still recover something. Please note that this is not legal advise and should not be construed as such.
    Answer Applies to: Washington
    Replied: 7/12/2011
    Deal & Hooks, LLC
    Deal & Hooks, LLC | Shawn P. Hooks
    You should contact an attorney right away. If they ultimately found the driver there may be a claim to make against that person and their insurance. The fact that he was jaywalking may limit the driver's liability but does not eliminate it.
    Answer Applies to: Ohio
    Replied: 7/12/2011
    LT Pepper Law
    LT Pepper Law | Luke T. Pepper
    I am sorry for your brother. The driver can be held responsible for hitting your brother. We would need to investigate the matter.
    Answer Applies to: Pennsylvania
    Replied: 7/12/2011
    Law Offices of Steven A. Fink
    Law Offices of Steven A. Fink | Steven Alan Fink
    Sorry to hear about your brother. Even though your brother violated the law, a driver is still required to exercise due care for the safety of pedestrians. You have a good personal injury lawsuit against the driver. Just not as strong or valuable as if your brother was in a crosswalk.
    Answer Applies to: California
    Replied: 7/12/2011
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    Yes, quite possibly, depending upon the rules of your particular jurisdiction which govern comparative and contributory negligence. You should arrange for a consultation on the incident with a local attorney who handles personal injury matters in your area.
    Answer Applies to: Virginia
    Replied: 7/12/2011
    Ferguson & Ferguson
    Ferguson & Ferguson | Randy W. Ferguson
    It depends on the state. In Alabama he would be contributorily negligent. It is possible to recover, but it will be hard to get past contributory negligence on his part. Talk to an attorney in your state.
    Answer Applies to: Alabama
    Replied: 7/12/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    Sorry to hear about your tragic loss. You would still have a wrongful death claim.
    Answer Applies to: Connecticut
    Replied: 7/12/2011
    David Hoines Law
    David Hoines Law | David Hoines
    Your brother's estate may have a claim on behalf of his surviving spouse, minor children and anyone else he supports.
    Answer Applies to: Florida
    Replied: 7/12/2011
    Bristol & Dubiel LLP
    Bristol & Dubiel LLP | Murray L. Bristol
    In Texas you can seek damages against someone that hit and killed a pedestrian with a vehicle. There may be arguments that the pedestrian was also negligent but that would only reduce the amount of recovery one may be able to recovery. I recommend that you contact an attorney who can advise you on your rights.
    Answer Applies to: Texas
    Replied: 7/11/2011
    David F. Stoddard
    David F. Stoddard | David F. Stoddard
    Yes you could. First, you might be able to show that your brother had the right of way, or that the accident was otherwise the other person's fault. You may wish to consult an attorney immediately, because valuable information that might be used to reconstruct the accident could be lostt. Second, if the other driver had a legal duty to render aid, and if you could show medically that there would have been a different outcome, that would be an alternate theory of liability. I would have to research whether the other driver had a duty to render aid. Generally there is no such duty. I know he has the legal duty to remain at the scene. I do not know if there is also a duty to call law enforcement.
    Answer Applies to: South Carolina
    Replied: 7/11/2011
    Lacy Fields, Attorney at Law, LLC
    Lacy Fields, Attorney at Law, LLC | Lacy Fields
    Absolutely! Think about what a compelling story that is: you shouldn't pay for jaywalking with your life! Plus who knows what the driver might have done wrong. He may have been drunk, he may have been speeding, he may have been texting, he may have been playing with the radio, he may have been driving with his lights off, etc. In my experience, the evidence in cases like these quickly disappears. It is probably a good idea to start talking to an attorney right away so that they take photos, video, interview witnesses and otherwise preserve as much evidence as possible. On another note, I'm really sorry to hear about your brother.
    Answer Applies to: Missouri
    Replied: 7/11/2011
    Coulter's Law
    Coulter's Law | Coulter K. Richardson
    ID: 25389 Could you be successful? Yes. Will you? One the one hand, the fact that the driver hit your brother and left the scene of the incident is important to proving the driver's liability. You can infer some degree of fault from his refusal to stop. To the extent that your brother was jaywalking is a matter of contributory negligence. So long as his degree of negligence was less than 50% of the cause of the accident. While the evidence that your brother lay dying in the road for hours is heartbreaking, your main problem is a lack of corroborating witnesses. The fact that your brother lay in the road for so long unattended means there is probably no other person that witnessed the accident. Your best avenue would be to pursue not so much the angle of the driver injuring your brother, but by refusing to stop at the scene of the accident and assist, he breached his duty of care. You do not normally have a duty to stop to care for an injured person, unless your actions caused that injury.
    Answer Applies to: New Jersey
    Replied: 7/11/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    You could possibly have a case. But, unless there were witnesses, then you are going to have to rely on expert testimony for an accident reconstruction. For example, if the speed limit was 30 MPH and the damage to the car and injuries indicate that the car was going 60 MPH, there is evidence of negligence.
    Answer Applies to: New York
    Replied: 7/11/2011
    Law Office of William Justice Whitaker
    Law Office of William Justice Whitaker | William J. Whitaker
    From the facts you stated, the driver can most likely be held liable for your brothers death. The fact that your brother was jaywalking will definitely be an issue however, there is the legal principle of "last clear chance" which could possibly be used to overcome the fact your brother was jaywalking and make the driver of the vehicle liable. These matters can be complicated and difficult and my advise is to contact an attorney as soon as possible to investigate this matter in great detail.
    Answer Applies to: Virginia
    Replied: 7/11/2011
    Rose, Senders & Bovarnick, LLC
    Rose, Senders & Bovarnick, LLC | Paul S. Bovarnick
    Short answer is probably yes, but you really need to talk to a lawyer, the sooner, the better. If there are eyewitnesses, their testimonies could be very important. The passage of time will not help their memories.
    Answer Applies to: Oregon
    Replied: 7/11/2011
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    I am very sorry to hear about your loss. You should talk to a PI attorney. There are facts unknown about the accident itself and there are questions regarding your ability to sue in a wrongful death suit. 7
    Answer Applies to: California
    Replied: 7/11/2011
    Holzer Edwards
    Holzer Edwards | Kurt Holzer
    Yes the potential exists. The facts you have provided are insufficient to reach a final conclusion on. The people who Idaho law gives the right to pursue a claim for your brothers wrongful death are his spouse and children if any and his parents. As a sibling Idaho law does not provide you a cause of action.
    Answer Applies to: Idaho
    Replied: 7/11/2011
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    The driver had a legal obligation and to wait for the police or, rather call the police. The estate of your brother can sue the driver of the car.
    Answer Applies to: New Jersey
    Replied: 7/11/2011
    Gregory Casale Attorney at Law
    Gregory Casale Attorney at Law | Gregory Casale
    I am very sorry to hear that you lost your brother. Especially in such a horrible way. It sounds like if the driver stopped and called for help, your brother's life may have been saved. Although your brother was jay-walking, there should still be a strong likelihood of success for a civil case against the driver. It is somewhat complicated and it is your brother's "estate" that would have to initiate the suit, but that is a technicality that is not difficult for a lawyer to deal with. You are doing the right thing seeking legal counsel and you should not speak to anyone who represents the driver or the driver's insurance company. In fact, you really shouldn't speak to anyone but the lawyer who represents you or your brother's estate until you are provided legal counsel. The driver, or his insurer, will be eager to settle this quickly and for as little as possible. They will look for any kind of act or statement that can be used to escape or minimize their liability.
    Answer Applies to: Massachusetts
    Replied: 7/11/2011
    Barry Rabovsky & Associates
    Barry Rabovsky & Associates | Barry Rabovsky
    You may have a case, based upon the information that you have supplied. We would be happy to provide you with a free consultation if you call my office at either of the numbers listed below. If my office accepts your case, there is no fee charged unless we are able to obtain a settlement for you.
    Answer Applies to: Illinois
    Replied: 7/11/2011
    Magnuson Lowell P.S.
    Magnuson Lowell P.S. | Richard S. Lowell
    Let me start by offering my condolences for your loss. In response to your question, though, the answer is 'yes,' you might be successful. First, even though he was jaywalking, every driver has an obligation to look out for people in the roadway. Admittedly, the odds of success on that theory, alone, are small; and even if a jury was to determine the driver was responsible, your brother would be held largely responsible, too. However, the driver had a statutory obligation to stop - and didn't. Since your brother apparently survived the initial impact, it is quite possible that had the hit-and-run driver called 911 and stayed at the scene (which he was required to do), your brother might have survived. That legal theory has a much better chance of success.
    Answer Applies to: Washington
    Replied: 7/11/2011
    Ron Graham Attorney at Law
    Ron Graham Attorney at Law | Ron Graham
    It is possible but I would need to know more facts.
    Answer Applies to: Ohio
    Replied: 7/10/2013
    Kelaher Law Offices, P.A.
    Kelaher Law Offices, P.A. | James P Kelaher
    Yes, you can still bring a claim despite the fact your brother was jaywalking. In Florida, however, a sister is not a "survivor" under the definition of survivor in the Wrongful Death Act. Consult with good personal injury attorney right away.
    Answer Applies to: Florida
    Replied: 7/11/2011
    Kirshner & Groff
    Kirshner & Groff | Richard M. Kirshner
    Yes if he has insurance or has any money.
    Answer Applies to: Florida
    Replied: 6/10/2013
    Law Offices of Joseph I. Lipsky, P.A.
    Law Offices of Joseph I. Lipsky, P.A. | Joseph Lipsky
    Sorry to hear about your brother. As Florida is a comparative negligence case, your brother's survivors are entitled to bring a claim against the driver of the car, and the fault of each person will be weighed against each other. So, the fact that your brother was jay walking will not bar a case.
    Answer Applies to: Florida
    Replied: 7/11/2011
    Ewusiak & Roberts, P.A.
    Ewusiak & Roberts, P.A. | Joel Ewusiak
    Possibly. More information is needed to evaluate the claim. Considering that this was a hit and run accident, an investigation may reveal that the driver shares some of the negligence for what occurred. Consult with a Florida lawyer.
    Answer Applies to: Florida
    Replied: 2/17/2012
    The Law Offices of Mark Kotlarsky
    The Law Offices of Mark Kotlarsky | Mark Kotlarsky
    Yes. Jaywalking is not a ban to recovery, although it makes it more difficult to win.
    Answer Applies to: Maryland
    Replied: 6/10/2013
    Sariol Legal Center
    Sariol Legal Center | Frank R. Sariol
    You should hire an attorney that is specialized in these types of cases. An investigation should be done right away and an expert utilized to determine liability. There are many facts missing from your question, facts which are important in order to analyze the case and give an accurate legal opinion. BTW, my condolences on the loss of your brother.
    Answer Applies to: California
    Replied: 7/11/2011
    Law Office of Mark J. Leonardo
    Law Office of Mark J. Leonardo | Mark Leonardo
    As for hitting your brother, the driver may still be liable depending on the circumstances of how it occurred. Vehicle Code 21954. Pedestrians outside crosswalks (a) Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard. (b) The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway. In an old case from 1953 where one was killed while crossing (not in a crosswalk) and the truck driver fled the scene, the driver was held liable. The court noted: The jury was instructed that the conduct of Farnsworth in driving away from the scene of the accident might be considered as a circumstance showing consciousness of responsibility on his part for the accident and death of Brooks and that the weight to be given such circumstance was a matter for the jury to determine. The jury was further instructed that the fact that Farnsworth left the scene of the accident could not, in and of itself, be the basis of a verdict against defendants, and if Farnsworth was not guilty of negligence which caused the accident and death of Brooks, or if Brooks was guilty of negligence which contributed to his injury and death, the verdict must be for defendants, regardless of what Farnsworth did or failed to do after the accident. Defendants argue that an instruction on the inferences which may be drawn from flight is appropriate only in a criminal prosecution. See Pen.Code, s 1127c. We have found no case in this state where an instruction of this type has been given in a civil action, but it has been held in other jurisdictions in negligence cases that failure to stop and **807 render aid is some evidence of a consciousness of responsibility for an accident See Kotler v. Lalley, 112 Conn. 86, 151 A. 433-434; Shaddy v. Daley, 58 Idaho 536, 76 P.2d 279, 281-282; Langenstein v. Reynaud, 13 La.App. 272, 127 So. 764, 766; Battle v. Kilcrease, 54 Ga.App. 808, 189 S.E. 573. Such an inference appears to be a reasonable one, and it was not error to give the instruction. The inference, of course, may be refuted, and a defendant is entitled to explain his conduct. In this connection, defendants complain that the court sustained an objection when Farnsworth was asked by his attorney why he did not stop after running over Brooks. The ruling of the court was, of course, error, but it was acquiesced in by defendants' attorney who stated that he thought it was correct and made no offer of proof. Moreover, Farnsworth's explanation of his failure to stop was developed elsewhere in the evidence, and it does not appear that any prejudice resulted from the ruling. The bottom line is that you could prevail, but an attorney deciding to take the case or not might need some more facts as to how the accident occurred, at least from the perspective of the driver. But fleeing the scene is certainly a knock against him.
    Answer Applies to: California
    Replied: 7/11/2011
    Law Offices of Steven R. Kuhn & Associates
    Law Offices of Steven R. Kuhn & Associates | Steven R. Kuhn
    What color clothes was he wearing? Had he been drinking? How far across the street was he when hit?
    Answer Applies to: California
    Replied: 7/4/2013
    Law Office of Ronald Arthur Lowry
    Law Office of Ronald Arthur Lowry | Ronald Arthur Lowry
    There isn't enough information given to answer conclusively but yes a recovery is possible. Georgia is a comparative negligence state meaning that the jury decides the percentage of negligence for both the plaintiff and the defendant. If the amount of negligence of the defendant is greater than that of the plaintiff (as long as the plaintiff is not 50% or more negligent) the plaintiff can recover although the amount of damages is reduced by the amount of the plaintiff's negligence. For example, if the defendant were speeding the jury might find the defendant 60% negligent and your brother only 40% negligent for his jaywalking. In that situation if the jury felt the total damages was $1,000,000 then the jury would reduce that to an award of $600,000. Usually there is something the defendant can argue to make the plaintiff partially responsible for the incidentso this is actually quite common.
    Answer Applies to: Georgia
    Replied: 7/11/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    Please accept my condolensces on the tragic death of your brother. Even though your brother was negligent in jay walking, that probably wasn't the direct cause of his death. The delay in treatment was. That delay is attributable to the driver who left the scene, in violation of Oregon law. You have a valid claim. You should contact an attorney right away. It is important in these cases to secure as much evidence as possible as early as possible.
    Answer Applies to: Oregon
    Replied: 7/11/2011
    Tenge Law Firm, LLC
    Tenge Law Firm, LLC | J. Todd Tenge
    Yes, you may definitely have a case.
    Answer Applies to: Colorado
    Replied: 6/10/2013
    Premier Law Group
    Premier Law Group | Jason Epstein
    Yes, absolutely. You need to talk to an attorney right away.
    Answer Applies to: Washington
    Replied: 6/10/2013
    Ewusiak & Roberts, P.A.
    Ewusiak & Roberts, P.A. | Christopher J. Roberts
    Yes, you could be successful. It would be up to a jury, but I'd say your odds are very good. You should talk to a lawyer soon. The statute of limitations in wrongful death cases in Florida is two (2) years, but you don't want to wait until the deadline. Sorry for your tragedy.
    Answer Applies to: Florida
    Replied: 2/20/2012
    Allen Murphy Law
    Allen Murphy Law | W. Riley Allen
    Yes, you certainly could. It will depend on how visible your brother was to the driver and whether the driver was operating his vehicle taking into account all attendant circumstances, including your brother in the road. I tried a case once where the individual was alleged to be laying in the middle of the road at 4am and was run over by a semi. The verdict was 7 figures plus as the story was not quite what the driver tried to make it out to be.
    Answer Applies to: Florida
    Replied: 7/11/2011
    Klisz Law Office, PLLC
    Klisz Law Office, PLLC | Timothy J. Klisz
    Absolutely yes. Because even if at fault, his death was caused by the hit and run drivers leaving the scene.
    Answer Applies to: Michigan
    Replied: 7/4/2013
Click to View More Answers:
12 3 4 5 6 7 8 9 Free Legal QuestionsConnect with a local attorney