Unfortunately, drivers are not always as careful as they should be around pedestrians.  All collisions between vehicles and pedestrians, however, are not the driver’s fault.  Pedestrians also have a duty of care.  The pedestrian and driver may share responsibility for an accident.  In some cases, the pedestrian may be found to be the sole proximate cause of the accident, especially if the driver made reasonable efforts to avoid the accident.

The Second District recently upheld an order granting summary judgment in a case involving a truck that hit and killed a man trying to cross the interstate in Panzera v. O’Neal. At approximately 3 a.m., a man climbed a fence and attempted to cross I-75 on foot in an area with no street lights.  He was struck by a tractor-trailer and died as a result of his injuries.  The man’s estate filed suit against the driver and his employer.

The driver testified that he did not see the pedestrian until he ran across the emergency lane into the truck’s lane.  He further testified that he braked hard and tried to swerve but could not avoid hitting the pedestrian.

The truck had a governor that limited its speed to 65 miles an hour, five miles less than the posted speed limit.  The truck also generated a sudden deceleration report when its speed dropped at least seven miles per hour in less than a second.  The report on the night of the accident indicated that the vehicle was traveling about 65 miles per hour when it began to decelerate suddenly.

The responding officers testified that they saw long skid marks that were consistent with the driver’s testimony.  The Highway Patrol officer who prepared the Traffic Homicide Investigation Report reported that the skid marks started nearly 100 feet before the collision.  He found that the available evidence indicated that the driver took immediate evasive action and could not have done anything more to avoid the accident.  He concluded that the pedestrian caused the accident.

The defendants moved for summary judgment.  The estate did not present any admissible evidence or expert testimony to refute that conclusion.  The trial court granted summary judgment, and the estate appealed.

To succeed on a motion for summary judgment in a negligence case, a defendant must show an absence of negligence or that the sole proximate cause of the injury was the plaintiff’s own negligence.  The party seeking summary judgment has the initial burden of proving that the other party cannot prevail, and then the nonmoving party must show the presence of a genuine issue of material fact.

The appeals court here found that the only issues offered by the estate were speculative.  The pedestrian’s parents testified that the defendant driver could have taken additional evasive action and avoided the collision.  The appeals court noted that the parents had no experience in accident reconstruction and that they were not present during the accident.  They based their opinions on their review of the accident scene.  This testimony, the appeals court found, was “purely speculative lay opinion testimony.”  As such, it was not admissible and therefore not sufficient to create a genuine issue of material fact.

The available evidence indicated that the driver was driving under the speed limit and tried to brake when he saw the pedestrian run into the road.  He swerved left in an effort to avoid a collision.  All of the available evidence supported the defendants’ position that the pedestrian had been the sole proximate cause of the collision.  No admissible evidence had been presented that would support a finding that the driver had been negligent.  The court therefore affirmed the order for summary judgment in favor of the defendants.

If you or a loved one suffered injuries as a pedestrian in an automobile accident, you need an experienced Florida pedestrian accident attorney.  The attorneys at Anidjar & Levine have the experience to evaluate the strength of your case and help you get the compensation you deserve. Call us at (800) 747-3733, or submit an online contact form.

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