Personal Injury in Miami Florida: Pedestrian and Bicycle Accidents and Deaths

1. Personal Injury in Miami Florida: Pedestrian and Bicycle Accidents and Deaths Florida is a state built for car lovers. After all, NASCAR was founded in Daytona in 1948, right around the time the nation's highway-construction boom began. And unlike many northeastern states, where cities initially developed during the horse-and-buggy era of travel, Florida's cities came of age around cars. As a result, nobody would ever consider Miami or Orlando good walking towns. What the Statistics Tell Us The truth is that Florida's cities are among the most dangerous in the country for people who travel on foot or by bicycle. Recently published data indicates just how dire the epidemic of ​pedestrian accidents​ in particular has become in places like Miami-Dade. The data, compiled by insurance giant State Farm on behalf of the ​Governors Highway Safety Association​ (GHSA), illustrates how even as cars are becoming safer, pedestrians are actually at greater risk for serious bodily injury or death when crossing the street. If you think this is an exaggeration, consider GHSA’s preliminary data for 2017 revealed that pedestrian deaths in the United States increased 27 percent over a 10-year period, while “all other traffic deaths decreased by 14 percent.” This means that pedestrian accidents now account for a greater share of total traffic-related fatalities than at any time in the past 25 to 30 years. GSHA called its own figures “alarming” and noted that pedestrian deaths continued to increase sharply in 2015 and 2016. But what about the situation in Florida? GHSA identified five states, including Florida, as responsible for 43 percent of all fatal pedestrian accidents in the United States. When viewed as a rate of deaths per 100,000 residents, Florida was the second-deadliest state for pedestrians during 2016. Only New Mexico reported a higher fatality. To put this in another perspective, Florida's pedestrian death rate was roughly 33 percent higher than that of California–a state with double the population and a lot more cars on the road. To make matters worse, Miami-Dade alone was the fifth-deadliest county for pedestrians, reporting 83 fatalities in 2016. More pedestrians denied in Miami than Chicago (Cook County), which only reported 74 deaths. Joining Miami in the nation's top-ten was Broward County, whose 67 pedestrian deaths just edged out Orange County, California. The Problem of Distracted Driving Even when a pedestrian is not ​killed​ in an automobile collision, he or she can still suffer serious, life-altering injuries. Pedestrians (and bicyclists) are far more likely to suffer a serious bodily injury than a driver or passenger in a car. This is just common sense: A pedestrian or bicyclist has little protection against a two-ton motor vehicle.

2. As with any motor vehicle accident, a pedestrian or bicyclist collision can have many causes. Oftentimes, it comes down to the motorist not paying attention to the road. “Distracted driving” has become a major problem on par with drunk driving in Florida. According to the National Highway Traffic Safety Administration, about 18 percent of all crashes resulting in bodily injury were the result of a distracted driver. Yet contrary to popular belief, the main cause of distraction is not people talking on their phones while driving. Although ubiquitous smartphone usage is often blamed for accidents–and states like Florida have adopted tougher laws against “texting while driving”–the NHTSA found that more than three-quarters of distracted driving crashes “did not involve the use of cell phone.” So what is distracting most drivers? Oftentimes it is the type of routine stuff most people do in their car without thinking–talking to passengers, putting on makeup, looking at their GPS, et cetera. Couple this with the fact that drivers often do not keep a proper lookout for pedestrians or cyclists sharing the road, and even a two-second distraction can lead to a serious injury for the person who is not in a car. Blaming Pedestrians & Cyclists for Accidents Of course, distraction is a two-way street. Many pedestrians are listening to music or talking on their phone even when crossing a busy intersection. Keep in mind, distracted walking is often slower walking. Most of us do not move as quickly when we are trying to multitask. Even in situations where a pedestrian is not distracted and took every precaution when crossing the street, a negligent driver may still try and blame them for the accident. Even though Florida traffic laws expressly states that motorists “shall exercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle,” many drivers think they alone own the road. This is frequently an issue in ​bicycle accidents​. A 2016 feature story in the Miami New Times offered just one example. The story discussed a female bicyclist who was struck and seriously injured by a driver. The driver's response? He berated the woman as she was lying hurt on the ground, calling her “stupid” and an “idiot.” Unfortunately, Miami has done a poor job of accommodating cyclists in its transportation planning. The city is littered with incomplete bicycle lanes that force cyclists back into oncoming motor-vehicle traffic. And the reality is motorists do not respect the bike lanes that do exist–or Florida law, which requires drivers passing a bicycle do so at a “safe distance” of at least three feet. Obviously, bicyclists also need to follow the rules of the road. This includes obeying all traffic lights and signs, properly signaling before making a turn or lane change, and not riding more than two abreast with other cyclists. And when riding on a sidewalk, which is generally legal in Florida, bicyclists need to exercise proper care to avoid hitting a pedestrian themselves. Will Your Insurance Pay for Your Injuries?

3. If you are a pedestrian or bicyclist injured in a car accident, it is critical to understand your legal rights as it relates to insurance and any potential ​personal injury​ claim. As you probably know, Florida is a “no-fault” state when it comes to car insurance. To briefly review what this means, all drivers licensed in the state must carry a minimum amount of “personal injury protection” (PIP) insurance. This is designed to cover your injuries following an accident without regard to whether another driver was negligent. Note that PIP coverage also applies to bicycle and pedestrian accidents. So let's say you are a pedestrian crossing a busy intersection in Miami and get hit by a speeding car. You are entitled to claim no-fault benefits under your PIP policy even though you were not in a car at the time. The same would be true if you were riding your bicycle and hit by a car. PIP coverage works fine in the majority of cases involving minor injuries. But if you suffer a “serious injury,” such as broken bone or a significant limitation of a body function or system, Florida law permits you to go beyond the scope of the no-fault system and pursue a personal injury claim against a third party. Unlike PIP coverage, such a claim may include compensation for “pain and suffering” and other non-monetary damages arising from the accident. But what if you do not know who hit you? Many pedestrian and bicycle accidents are “hit and run” events where the motorist flees the scene–despite the fact this is a crime in Florida. There are other accidents were the driver is identified but lacks sufficient insurance to cover a bicyclist or pedestrian's damages. In either scenario, you may be able to seek compensation from your own insurance carrier. Florida law requires all auto insurance companies to offer their policyholders “uninsured motorist”–sometimes called “underinsured motorist”–coverage. As the name suggests, this is insurance that protects you in the event that a negligent driver cannot pay for any damages he or she caused. UM coverage is typically for the same amount as the policyholder's maximum PIP benefits. Although the law requires the insurer to offer you UM coverage, you do not have to purchase it. If you do reject coverage, you must do so explicitly in writing. But to be honest, there is no good reason to turn down UM coverage, especially if you are someone who frequently rides a bicycle or walks around downtown Miami. If you are the victim of a hit-and-run accident, UM coverage may be the only way you will receive compensation for your injuries. Comparative Fault in Florida But assuming you are able to identify the negligent driver following a pedestrian or bicycle accident, what happens if the case goes to court? As discussed above, drivers usually try to blame the pedestrian or bicyclist. And if you happen to file a claim under your underinsured motorist policy, your insurance company may also try to hold you responsible. Remember, in the context of a UM case, the insurer effectively assumes the role of the unknown or uninsured defendant, which means their interests are adversarial to yours.

4. The good news is that even if a judge or jury ultimately determines you are partially responsible for your accident, you can still recover some damages from the negligent driver or insurer. Florida applies what is known as a “pure comparative negligence” standard in personal injury cases. In plain English, this means that the judge or jury will apportion fault between the parties and reduce your award based on your relative fault. Here's a simple example. Jane is a pedestrian who crosses the street outside of the marked crosswalk. Steve is driving his car in excess of the posted speed limit and hits Jane. Jane breaks her leg in the accident and sues Steve for damages. The jury determines Jane suffered $50,000 in damages but finds she was 20 percent at-fault for the accident. Consequently, the judge will order Steve to pay Jane $40,000, which represents his 80 percent “comparative fault” for Jane's damages. Even if the jury viewed Jane's infraction as more significant–say it determined she was 90 percent at-fault–she would still be entitled to recover the remaining 10 percent against Steve. Since Florida practices “pure” comparative negligence, there is no minimum threshold a victim must meet before recovering damages. In other states, Jane would be barred from recovery if she was at least 50 or 51 percent at-fault for the accident. What You Can Do Following an Accident Assigning comparative fault is not an exact science. This is why it is critical for accident victims to gather as much evidence as possible before filing a personal injury lawsuit. Even when negotiating a potential settlement with an insurance company, you need to do your due diligence. Once again, insurers and defendants will do everything they can to shift blame to a pedestrian or bicyclist. Here are few things you can do immediately following an accident to help your case for damages: 1. Contact the Police Assuming the driver does not leave the scene, he or she may try and convince you not to report the accident and “let them take care of everything.” Never take a motorist at their word. It is always best to contact local law enforcement and allow a trained police investigator to prepare an official accident report. If nothing else, having a report demonstrates to your insurance company that you are acting in good faith. 2. Reach Out to Any Witnesses Especially in a hit-and-run situation, you should identify anyone else who saw what happened. This includes other cyclists or pedestrians, or even another driver who stops to offer assistance. Ideally, there is a witness who captured footage of the accident on their smartphone. But even having an eyewitness who can confirm the make and color of the driver's vehicle–or the license plate–can prove enormously helpful. 3. Get Medical Attention–Even If You Don't Think You're Hurt

5. The biggest mistake most pedestrians and bicyclists make following an accident is not seeking prompt medical attention. The problem is that if you start to feel the effects of your accident a few days or weeks later, the other driver (or your UM carrier) may argue there was an intervening factor that caused your symptoms. This can make it more difficult to recover damages for your long-term medical expenses. 4. Contact a Personal Injury Lawyer–Even If You Don't Think You Need One Accident victims often think that hiring a lawyer will only provoke their insurance company or the other driver into not settling a claim. But more often than not, the reverse is true. Pedestrians and bicyclists who hire a qualified ​personal injury attorney​ usually get larger settlements that more fairly reflect their total damages. Nobody wants to go to court if it can be avoided. But given the Miami-Dade area's well-documented problem with pedestrian and bicycle accidents, hiring a lawyer may be only your chance to obtain compensation for your injuries. If you have any questions or concerns, contact the offices of ​Dolan Dobrinsky Rosenblum LLP​ today.