My son was in an accident walking home from school. A car coming from a driveway struck him while he was walking on the sidewalk and injured his arm and leg. What claims does my son have?

Your son has two different claims. As explained in prior posts, New York is a no fault state. That means that the no fault carrier will pay for your son’s medical bills. In your son’s case, the insurance carrier covering the vehicle that struck your son will pay for his medical expenses. You must file a no fault application within 30 days after the accident.

The second part of the no fault law states your son can sue for personal injuries if he sustained a serious injury.

Rules of the Road

According to the Vehicle and Traffic Law, a pedestrian on a sidewalk has the right of way over a vehicle emerging from a building entrance or driveway. The driver of an emerging vehicle is required to stop immediately prior to driving onto the sidewalk. Furthermore, if there is no sidewalk, the driver must stop at the point nearest the road where the driver has a view of approaching traffic, VTL §1151-a and VTL § 1173; see Pulka v Edelman, 40 NY2d 781, 390 NYS2d 393 (1976).

Besides your son having the right of way, a driver has a duty to exercise due care to avoid hitting a pedestrian. VTL § 1146 . See also Deitz v Huibregtse, 25 AD3d 645, 808 NYS2d 737 (2d Dept 2006). Additionally, VTL § 1146 imposes a duty on motorists to warn pedestrians by sounding the horn when necessary. See Long v Niagara Frontier Transp. Authority, 81 AD3d 1391, 917 NYS2d 463 (4th Dept 2011)

Diminished Capacity

If the driver attempts to blame your son for the accident, depending on your son’s age, your son may be entitled to a diminished capacity charge. For example, if your son is eight years old, the court will hold him to a subjective standard of care, that is, what an eight year old is mentally capable of: the experience, intelligence, and development of an eight year old boy. Dimino v Burriesci, 125 AD2d 361, 509 NYS2d 86 (2d Dept 1986).

In your son’s case, I am assuming he has probably sustained a serious injury. He is a boy that was struck by a car.

Furthermore, the rules of the road favor him and his age might help his case as well. So he will be able to make a claim for personal injuries.

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.