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Walk This Way: 8th Dist. Court of Appeals Clarifies Duty to Pedestrians

On August 15, 2013, the 8th District Court of Appeals located here in Cleveland, Ohio came down with a decision in the matter of Anderson v. Schmidt, an appeal from the Cuyahoga County Court of Common Pleas in a personal injury case. The Plaintiff, Priscilla Anderson, a 74 year old woman, was struck by a tow truck while crossing the street in a crosswalk. Ms. Anderson later died from complications as a result of her injuries. Her children brought a wrongful death action against the negligent driver that hit her.

The Court of Appeals clarified the duty owed to pedestrians in the crosswalk. In addition, the concurring judge (a judge who agrees with the outcome but for different reasons) explained the proper use of the collateral source rule on cross examination.

At trial, the Court instructed the jury on three issues of law that the majority of the Court of Appeals found to be incorrect: "Right of Way", "Continuing to Look", and "Leaving a Place of Safety".

As a pedestrian, Priscilla Anderson had the right of way when she entered the roadway legally. The only way that she would lose that right of way was if the Defense demonstrated that she violated the law in some way. As they were unable to do so, the Court of Appeals found that instructions telling the jury that Priscilla Anderson had to use a certain level of care were incorrect since she had the right to enter the roadway, and did so legally.

The Court of Appeals also indicated that, as a pedestrian, Priscilla Anderson was under no duty to continue to look. While every individual wants to proceed with caution into the roadway, pedestrians do not lose their right of way simply because they miss an obstacle or an oncoming vehicle. It is for the vehicle to yield to the pedestrian, not the other way around.

Next, the Court of Appeals found that instructions indicating that the pedestrian cannot leave a place of safety or rush into traffic was inappropriate. As Priscilla Anderson was found 12 to 14 feet into the street, in the middle of the crosswalk, there was no evidence to suggest she "left a place of safety" or jumped into traffic. As the concurrence points out, the crosswalk is the only place where pedestrians are safe, and if they are suddenly no longer safe within the crosswalk, they will be safe nowhere.

The concurrence, however, is where the most interesting points are made. Written by Judge Kenneth Rocco, the concurrence focused on the Defense's use of the collateral source rule on cross examination. The collateral source rule is a rule which states that defendants can't bring up the fact that your insurance company (or any other source) paid for your medical treatments or lost wages. Basically, the jury is not allowed to hear that someone else might have already paid for your treatment. The defendant is the sole party responsible for paying for your injuries.

The concurrence points out that the Defense attorney telling a witness that Medicare had a lien against his mother's estate was in violation of the collateral source rule.

Overall, the decision handed down by the 8th District Court of Appeals is a good ruling for pedestrians and those involved in accidents state wide. If you or your family member has been involved in accident or other personal injury matter, don't wait to contact a JKFM Law attorney today to examine your legal rights.

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