Dear apoptosiss-ga;
I?m going to try to answer your question but keep in mind that we
cannot provide legal advice in this forum. What I am telling you is
general knowledge from the standpoint of someone in law enforcement
(I?ve devoted 20 plus years to the career myself).
Generally speaking when an accident occurs an investigating officer
cites one of more of the parties involved for actions that his
preliminary investigation concluded to be contradictory to safety,
responsibility, obligation and/or statute. In some instances an
officer cannot determine who is at fault or finds fault in someone or
some ?thing? that, through his/her/it?s natural or negligent actions,
caused, enabled or prompted the accident. In some jurisdictions the
investigating officer forwards his or her findings to a District
Attorney (sometimes called Prosecuting Attorney) for further
consideration and who makes the final determination if
criminal/traffic charges should be filed in the accident. It is
possible that the driver could be charged later for his actions and
then again it?s possible that the child, or the person supervising the
child, could be found at fault. Obviously a child, animal, falling
tree, etc. cannot be cited for causing a traffic accident. In this
instance the matter becomes civil and the person responsible for the
child, animal or falling tree is often liable ? in which case YOU may
eventually be the target of a civil suit, but only time will tell what
the driver?s intentions are in this regard.
Apparently, in your case, it appears that the driver was not cited or
you would have been given a criminal/traffic court date to defend your
child, present your case, and request restitution for medical bills.
If this is the case then you may pursue the matter in civil court
(small claims court in most states, if the damages are less than
$5000).
If your position is that the child was crossing legally and was not at
fault in the accident then you may contact the clerk for the court in
your jurisdiction and file a civil action against the driver. Here you
will present the facts to a judge who will determine if the driver (or
his insurance company) is responsible for the damages. If the judge
determines that the child was acting responsibly then you may recover
a monetary award for the damages. If, on the other hand, the judge
finds that the accident was unavoidable, the driver was exercising due
caution, and the accident occurred due to the negligence of the child
or the parties responsible for supervising his crossing, you may not
receive restitution and in fact may be found liable for the damages to
the driver?s vehicle, emotional distress, etc. Depending on the facts
(and we can?t hold court here) a civil suit is sometimes a gamble ?
you may win or you may lose (and if you lose you may even be found
financially responsible).
If you feel that the child was not at fault and the accident occurred
because the driver was negligent, I would recommend that you consult
an attorney. Normally anyone who has a civil claim may file suit and
represent himself in a simple civil complaint but when the stakes are
high and an insurance company is involved you can rest assured that
the insurance company will hire a lawyer to defend themselves and
perhaps even their client. Given this fact it would be unwise, in my
professional opinion, to show up in court without a lawyer if the
?defendant? has one.
So, in short, here?s the deal:
Find out from the officer if the driver was cited, or from the
District Attorney if criminal/traffic charges are pending. If he was
cited there should be a court date.
If the driver was not cited your only option is a civil (small claims)
complaint, in which case you should contact the court clerk in the
jurisdiction where the accident occurred and get instruction on how to
go about filing a civil suit (this usually requires you to fill out an
affidavit attesting to the facts of the case and paying a nominal
filing fee).
In the meantime, as a general rule, injured parties typically pay for
their own medical expenses (either out-of-pocket or through their own
insurance company) and seek reimbursement from the responsible party
or his insurance company by suing them. Keep in mind though that you
will be held financially responsible for whatever bills you incur if
the final judgment is not in your favor, so if you can seek treatment
from a local physician rather than, say, a specialist at the Mayo
Clinic (unless you absolutely need to on the advice of a doctor), it
would probably be prudent to do so. In other words, keep your medical
bills as affordable as possible in cased you end up having to pay them
and don?t go all out thinking that someone else will foot the bill ?
because they may not.
Now, let me offer my personal observations based on what I know. I
can?t investigate your case nor hold court for you in this forum but I
can offer some facts based on my experience in these types of accident
investigations:
-- Children dart into the street from between cars. This happens all
the time. It is unfortunate but the fact is that this (from the
driver?s standpoint) is often an unavoidable accident. Usually
drivers? are not held responsible for such accidents.
-- If the driver was speeding there may be no way to prove this. Your
?witness? would have to testify that the driver exceeded the speed
limit or otherwise acted recklessly and if the court determined that
this is a fact then at best, in my opinion, the court may find that
there are shared liabilities here: the driver was 50% at fault and the
child, or the adult supervising the crossing, was 50% at fault. These
offsetting liabilities sometimes mean that neither side if liable to
the other and therefore liable only for his or her own damages.
-- The number of feet the child was thrown from the point of impact
(POI) is not always indicative of speed. Am 8-year old child can
easily be thrown 15 feet from the POI if the driver was traveling the
25 mph speed limit you mentioned. A greater distance would obviously
be indicative of a higher and more excessive speed, but only if the
child were struck head-on rather than ?sideswiped?.
In my personal (not legal) evaluation of the facts as you have
described them, you will have a difficult time proving that the child
or person supervising the child?s crossing did not act negligently in
causing the accident, but then again this is merely my opinion and the
final decision would rest with the court. A lawyer can advise you if
you have a viable case and what your chances of winning are. When it
all boils down you may have to simply absorb your losses and be
thankful that no one was more seriously injured ? a small price to pay
for the life of a child.
Legal situations, actions and options differ from one state and one
jurisdiction to another. What I have supplied you with is information
in general terms related to incidents similar to your, but yours may
differ slightly depending on the rules and laws of your state. You
will note our disclaimer below than we do not provide legal advice in
this forum. I recommend you consult an attorney, if for no other
reason, for advice on how (of if) to proceed.
I hope you find that my answer exceeds your expectations. If you have
any questions about my research please post a clarification request
prior to rating the answer. Otherwise I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.
Best regards;
Tutuzdad-ga ? Google Answers Researcher
INFORMATION SOURCES
Information provided was based on professional experience and common
knowledge of circumstances similar to the one described. |
