Negligence is defined as the failure to act with the level of care that a reasonable person would have exercised under the same or similar circumstances. There are five elements of a standard negligence claim. In prosecuting a pedestrian accident lawsuit based upon on negligence, the following elements must be proved by a preponderance of the evidence, (meaning that more than 50% of the evidence favors his or her case), he or she will win the lawsuit and will be awarded money by the court. If an injured pedestrian can establish each of these elements, then a Defendant can be found liable for the pedestrian’s damages.

• Duty of Care: Drivers have a duty of care to exercise caution with other drivers, cyclists, and pedestrians that share the roadway. The defendant must be obligated by law to act in a certain way toward the injured pedestrian. There is almost always a duty for a driver to exercise reasonable care toward pedestrians on the roadway.
• Breach of Duty: The defendant must have breached that duty, meaning that he or she failed to act with the required level of care. If a driver breaks a traffic law and strikes a pedestrian, the court may automatically assume that the driver has breached a duty under a legal theory called negligence per se.
• Cause-in-Fact: The injured pedestrian must prove that the driver actually caused his or her injury. The cause in fact element of negligence means that you cannot put the responsibility on a defendant without establishing a clear cause-and-effect relationship.This is sometimes called “but-for” causation because the plaintiff must show that but for the defendant’s actions, the plaintiff’s injuries would not have occurred.
• Proximate Cause: It must be proven that the breach of duty was the proximate cause of the harm suffered by the injured person. In New York, this means that the plaintiff can only seek damages if the negligence is a substantial factor in causing the incident that led to the injury. Although, it does not have to be the only factor but, just has to be a substantial one. The driver in a pedestrian accident case will only be responsible (or “liable”) for the harms that were foreseeable as a result of his or her actions.
• Damages: The fifth element of negligence is damages which is compensation for pain, suffering, loss of enjoyment of life, lost income, or money spent on medical treatment. If you were injured in a personal injury case because of the negligence of one or more persons, you will be entitled to damages, however, you must prove the other elements of negligence before you receive damages.

What is the Timeline for a Pedestrian Accident Lawsuit?

If you are considering filing a pedestrian accident lawsuit, you probably want to know how long your case will take. In New York, you have three years from the date of your accident to file a lawsuit under a procedural rule known as a “statute of limitations.” Once you file your lawsuit, the amount of time it will take to resolve depends on a number of factors, including the severity of your injuries and the complexity of the legal issues involved in your case.

If you were seriously injured, the defendant (or his or her insurance company) may be eager to settle the case before it goes to trial because they anticipate that the amount of damages that you’re awarded by a judge or jury will be very high. If you receive a  settlement offer before trial, your lawyer will help you determine whether you are being offered a fair amount of money for your injuries and other losses. If your pedestrian accident case goes to trial, this process can take several months or even years. Your lawyer can help you better understand how long your pedestrian accident lawsuit will take once he or she begins working on your case.