I was driving on a dark two lane road. I did not see that there was a pedestrian walking on the right side of the road. Unfortunately I hit this person. Do I have any kind of defense?
Yes you have a defense. But I would first point out that you should notify your insurance company. You pay premiums so that if there is an accident, the insurance company will defend and indemnify for any damages you caused. I would refer you to a prior post about timely notice to your insurance company.
Your case is like a prior post about a pedestrian hit while walking on the side of the road. The difference is you are looking at this from the opposite point of view of the driver. From your perspective, the pedestrian violated the Vehicle and Traffic Law. Under section 1156, the pedestrian has an obligation to walk against the traffic on the left side of the road. Normally, violation of the Vehicle and Traffic Law is a basis to find negligence on the pedestrian.
However, as noted in this prior post, you as a driver have an obligation to avoid hitting a pedestrian. Vehicle and Traffic Law section 1146. So just as the pedestrian had an obligation to walk on the opposite side of the street, you had an obligation to see what there was to be seen. You had an obligation to avoid hitting a pedestrian.
There is an underlying principle: even though normally a violation of the Vehicle and Traffic Law will be enough to prove negligence, that violation may not be enough to win a case. Just because a person violates the Vehicle and Traffic Law, they have an opportunity to explain the reason for violation. Tedla v Ellman, 280 NY 124, 19 NE2d 987 (1939). There is no absolute right to cause an accident just because the other person violates the law. A jury will not only hear about the statute, a jury will also hear about any explanation to violate the statute.
By James Santner, Esq.
If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.