Pedestrian Accident Attorneys in Charleston, WV

Each year, thousands of Americans are killed, and hundreds of thousands are seriously injured by pedestrian crashes. Pedestrians have very little protection compared to motor vehicle drivers, and when they are involved in a traffic-related incident, they are far more susceptible to severe injuries and fatalities. Pedestrian accidents have been on the rise in recent years, and it is becoming increasingly dangerous for those who are out walking to get where they are going.

During the past decade, pedestrian crash fatalities have increased by approximately 30%, and this increase has been caused primarily by preventable factors. If you or someone close to you has been injured or killed in a pedestrian crash, you may be entitled to significant compensation. But in order to recover the just compensation you deserve it is best to work with an experienced personal injury lawyer.

At Bailey, Javins & Carter, L.C., we have over 40 years of experience representing victims of pedestrian crashes, and those who have suffered all other types of personal injuries in West Virginia. Our lawyers have extensive knowledge of this area of the law, and over the years, we have secured tens of millions of dollars in damages and settlements for our clients. We have a successful track record with even the most complex cases, and we work closely with our clients, fighting hard to recover maximum compensation on their behalf.

Why are Pedestrian Fatalities Increasing?

Pedestrian crashes can happen anytime and anywhere, but they are most likely to occur during morning and evening rush hours when commuters are trying to get to and from work, after dark, on poorly maintained roads or parking lots, on local roads with unsafe crossings, and on weekends. Young children and the elderly are the most at risk for serious injuries when a vehicle collides with a pedestrian.

Some of the most common causes of pedestrian crashes in West Virginia include:

• Aggressive/Reckless Driving: People always seem to be in a hurry these days, and this is reflected in their driving habits. In order to save a minute here or a minute there, many motorists routinely drive aggressively, and in some cases, it crosses the line into recklessness. Speeding, tailgating, running stop lights and stop signs, making sharp and dangerous turns, and similar behaviors are often contributing factors in a pedestrian accident.

• Distractions: Motorists and pedestrians are susceptible to numerous types of distractions. Examples include eating and drinking, grooming, handling passengers, staring too long at billboards, and looking down at their cell phones.

• Intoxication: Alcohol plays a role in approximately 50% of all pedestrian accident cases. And in approximately two-thirds of pedestrian crashes that involve alcohol, it is the driver who is intoxicated.

• Drowsiness/Fatigue: Another growing problem in our society is drowsy driving. According to the National Safety Council (NSC), 20% of drivers admit to having fallen asleep while behind the wheel during the past year, and 40% admit that this has happened to them at some point since they started driving. Anyone who does not have a proper amount of sleep is susceptible to drowsy driving, but it is especially common among commercial vehicle drivers.

• Dark Clothing: As we touched on previously, a large percentage of pedestrian accidents occur after dark. After the sun goes down, it is harder to see someone who is wearing dark clothing when they are walking. A good practice for pedestrians who walk at night is to wear bright or reflective clothing.

Experts point to a number of factors that have caused pedestrian crash fatalities to increase during the past several years, these include:

• Societal Changes: Our population has grown significantly during the past couple decades, and we have also become a much more health conscious society. These two factors have resulted in a sharp increase in pedestrian traffic, which is one of the reasons why more crashes are occurring.

• Larger Vehicles: A combination of economic growth and lower fuel prices in recent years has resulted in more Americans purchasing large vehicles, such as vans, full-size pickup trucks, and SUVs. Larger-sized vehicles have a higher ground clearance and bigger blind spots, making it more difficult to see out of them. In addition, when a bigger and heavier vehicle collides with a pedestrian, the chances of severe and catastrophic injuries increase.

• Safety Feature Malfunctions: Many new vehicles are equipped with safety features such as pedestrian detection systems that are supposed to reduce the number of accidents. But a study conducted by AAA found that these features had a failure rate of more than 50%.

• Smartphone Use: Widespread smartphone use by both drivers and pedestrians is most often cited as a major reason why pedestrian accidents are increasing. Motorists who look down at their phones for even a few seconds to send a text can wind up causing a major crash. And pedestrians also need to be careful to pay attention to the road rather than their phones, especially when they are crossing the road.

Compensation and Causation: A Deep Dive into Damages from West Virginia Pedestrian Crashes

An encounter between a moving motor vehicle and an unprotected pedestrian almost invariably results in devastating consequences. The human body is simply no match for the mass and momentum of a car, truck, or even a motorcycle. Following such a traumatic incident, the victim faces immediate and overwhelming physical challenges, coupled with a complex and arduous legal process to secure necessary financial recovery. In West Virginia, the pursuit of compensation involves understanding not only the extensive list of recoverable damages but also the crucial role of the state’s modified comparative negligence statute in determining the final award amount.

The Comprehensive Scope of Recoverable Damages in West Virginia Pedestrian Crashes and Other Pedestrian Accidents 

Victims of pedestrian crashes may be eligible for a wide range of financial damages. These damages are generally categorized into two main groups: economic (quantifiable monetary losses) and non-economic (intangible losses related to quality of life and suffering). In the tragic event of a fatality, a separate category of wrongful death damages applies.

Economic Damages (Measurable Losses)

The initial, most obvious losses involve medical care, which is frequently astronomical in pedestrian crash cases due to the severity of injuries like traumatic brain injuries, spinal cord damage, and multiple fractures. These damages include:

• Emergency Room and Hospitalization Costs: The immediate and often life-saving care rendered in the hours and days following the incident.
• Cost for Surgeries and Other Types of Treatment: Expenses for complex surgical procedures, follow-up operations, and specialist consultations.
• Rehabilitation Expenses: Costs associated with physical therapy, occupational therapy, and cognitive therapy aimed at restoring function.
• Costs for Ongoing Medical Care: Future expenses, which can include prescription medications, periodic doctor visits, in-home care, and medical equipment for a lifetime.

Beyond medical costs, an injured person’s ability to earn a living is often severely impacted:

• Lost Wages: Income lost from the inability to work during the immediate recovery period. This includes salary, bonuses, commissions, and any other employment benefits.
• Loss of Earning Capacity: This is a crucial, forward-looking damage category. It represents the permanent or long-term reduction in the victim’s potential to earn money for the rest of their working life. This calculation requires careful analysis of the victim’s pre-injury occupation, education, and career trajectory, and is a significant factor in cases involving permanent injury or disability.

Non-Economic Damages (Intangible Losses)

These damages are intended to compensate the victim for the subjective impacts of the injury on their life:

• Physical and Emotional Pain-and-Suffering: Compensation for the physical agony, discomfort, anxiety, depression, and psychological trauma endured, from the moment of impact and into the future.
• Diminished Quality of Life: This accounts for the loss of enjoyment of activities, hobbies, and personal relationships that the victim can no longer pursue due to the injury. For example, the inability to play with children, participate in sports, or even perform basic household tasks.
• Disfigurement: Compensation for permanent scarring, burns, or other visible alterations to the victim’s body.
• Permanent Injury: Financial recognition of lasting physical impairment or loss of function.

Wrongful Death Damages

In the tragic case where a pedestrian fatality occurs, the decedent’s estate and certain beneficiaries can pursue damages for wrongful death, which typically include:

• Funeral and Burial Expenses.
• Compensation for lost companionship, comfort, and guidance.
• The deceased’s probable net earnings were lost to the family.
• Loss of services, protection, care, and assistance provided by the deceased.

West Virginia’s Modified Comparative Negligence Statute

While the list of potential damages is extensive, securing the full amount is directly tied to the issue of fault. West Virginia uses a modified form of comparative negligence to evaluate personal injury claims. This system is designed to allow a plaintiff to recover damages even if they were partially responsible for the accident, but it imposes a strict limit.

Under this system, a plaintiff can recover damages for the losses they have sustained as long as they are no more than 50% at fault for the underlying accident. This “50% rule” is critical: if a jury or court determines the pedestrian was 51% or more responsible for the collision, they are completely barred from recovering any compensation whatsoever.

However, if the injured person is found to be partially responsible, their damage award is reduced in proportion to the percentage of fault they share.

Illustrating the Rule’s Impact:

The statute operates on a sliding scale. Let’s use the example provided: Suppose a pedestrian sustains a total of $200,000 in documented losses from their injuries. If that pedestrian is found to be 20% at fault for the accident (perhaps for stepping slightly outside a marked crosswalk), their damage award is reduced by that percentage. $200,000 Total Damages $\times$ 20% Fault Share = $40,000 Reduction $200,000 – $40,000 = $160,000 Recovered Damages

If, however, the defendant successfully argues that the pedestrian was walking on a dark road wearing dark clothing while texting, and the court assigns 51% fault to the pedestrian, the victim recovers $0. This high-stakes threshold makes the assignment of fault the most contentious point of the entire litigation.

Defense Strategies: Leveraging Comparative Fault

You can be absolutely certain that the insurance company for the party that injured you will look for any way they can to minimize the amount of compensation they have to pay. One of their most effective strategies to achieve this reduction is to vigorously try to assign some percentage of the blame for the accident to the injured person.

Insurance adjusters and the legal teams they retain are well-versed in minimizing payouts, and they will meticulously investigate every detail of the incident to find evidence of pedestrian fault. Common defense arguments that attempt to trigger the comparative negligence reduction include:

• Jaywalking or Crossing Outside a Crosswalk: Claiming the pedestrian was not using a designated crossing area.
• Distraction: Arguing the pedestrian was distracted by a cell phone, headphones, or other device, making them unaware of traffic.
• Improper Attire: Suggesting the pedestrian contributed to the crash by wearing dark clothing at night, making them difficult for the driver to see.
• Disobeying Signals: Claiming the pedestrian walked against a “Don’t Walk” signal or failed to yield the right-of-way when required.

The central goal of the defense is to push the fault percentage as high as possible—ideally over the 50% bar to block recovery entirely, or at least to reduce the final payout substantially.

The Indispensable Role of Legal Advocacy

Because the insurance company’s strategy hinges on assigning fault to the victim, it is vitally important to get a legal representative involved as early as possible after your accident. This is not merely an administrative step; it is a critical defensive measure necessary to protect your right to full and fair compensation.

A knowledgeable attorney brings critical resources to bear:

1. Immediate Investigation and Evidence Protection: They dispatch investigators and coordinate with accident reconstructionists to swiftly gather and preserve data that proves the driver’s negligence, such as retrieving traffic camera footage, securing vehicle data recorders (EDR/black box data), and obtaining testimony from unbiased witnesses. This counteracts the rapid-response teams sent by the trucking or insurance company.
2. Legal Defense Against Comparative Negligence: They systematically challenge and dismantle the defense’s attempts to assign blame. For example, if the defense claims the pedestrian was wearing dark clothes, the attorney can present evidence about street lighting, driver speed, and reaction time to demonstrate the driver’s negligence was the sole proximate cause.
3. Accurate Valuation of the Claim: Attorneys collaborate with medical professionals and economists to create a precise and robust valuation of both current and future damages, including the complex calculation of loss of earning capacity. This ensures the settlement or award is adequate to cover lifelong needs.
4. Negotiation and Litigation Management: They handle all communications with the powerful insurance defense teams, ensuring the victim is not taken advantage of during settlement talks. Should the case proceed to a lawsuit, the legal representative manages the entire litigation process, preparing the case for trial, ensuring deadlines are met, and presenting the evidence coherently to the trier of fact.

Without a capable legal professional managing these intricate and adversarial steps, the victim’s claim faces significant challenges, making it much more likely that the final award will be substantially reduced by the defense’s successful efforts to shift blame. Securing dedicated legal assistance is the best way to safeguard the recovery process and pursue the comprehensive compensation needed for recovery and long-term stability.

If you or a loved one suffered injury in a pedestrian crash, Bailey, Javins & Carter, L.C. is ready to go to work for you! Message us online or call our office today at (800) 497-0234 or (800) 296-6979 for a free consultation and case assessment with a member of our legal team.

We work on a contingency basis. We don’t get paid unless you do.