What Does a Safe and Happy Halloween Mean in 2020?
October 30, 2020 | Personal Injury
Local or state politicians will probably make the final Halloween rules. But the Centers for Disease Control has already issued some guidelines in this area.
“Many traditional Halloween activities can be high-risk for spreading viruses. If you may have COVID-19 or you may have been exposed to someone with COVID-19, you should not participate in in-person Halloween festivities and should not give out candy to trick-or-treaters,” the agency said.
The CDC classified most activities, such as parties and door-to-door trick-or-treating as high-risk activities.
Medium risk activities included one-way trick-or-treating (leaving candy on the porch) and socially distanced activities. Low risk activities included Halloween scavenger hunts (hiding candy in the house) and virtual Halloween costume contests.
Halloween and Pedestrian Injuries
In a typical year, pedestrian injuries are usually the greatest Halloween danger for kids.
The number of under-18 fatal pedestrian accidents generally doubles on October 31. Since many children do not cross the street in marked crosswalks, these claims are legally complex. More on that below.
Speed is usually the leading factor in terms of injury severity. Excessive velocity increases the risk of a crash and the injuries in a wreck.
Velocity increases stopping distance.
That’s the distance a vehicle travels between the moment a driver sees a hazard and applies the brakes and the moment the car safely stops.
At 20mph, stopping distance is about three car lengths. At 30mph, stopping distance doubles to six car lengths.
Furthermore, according to Newton’s Second Law of Motion, speed multiplies the force in a collision. At impact speeds less than 25mph, the pedestrian death rate is under 10 percent.
This figure skyrockets to 25 percent at impact speeds above 30mph.
So, a few ticks on the speedometer could literally make the difference between life and death in this context.
Speed-related wrecks usually involve either the ordinary negligence doctrine or the negligence per se shortcut.
Generally, the speed limit on a residential street is 30mph. The duty of care sometimes requires drivers to operate below the posted speed limit, thus to avoid Halloween injuries.
There are more children on the street, the light is fading during the trick-or-treating hour, and kids do not always look both ways when they cross the street.
All these factors dictate that a much slower vehicle speed, perhaps 20mph, is reasonable under the circumstances.
If a driver breaches the duty of care and causes injury, the driver could be liable for damages. These damages normally include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Drivers who operate above the posted limit could receive citations. And, the speed limit law establishes the standard of care in these cases.
Therefore, tortfeasors (negligent drivers) could be liable for damages as a matter of law if:
- They violate a safety law, and
- That violation substantially causes injury.
However, emergency responders often do not issue citations in these situations.
Many responders see these incidents as civil disputes, and they do not want to get involved. So, even if the negligence per se rule might normally apply, a New York personal injury attorney must often rely on the ordinary negligence doctrine.
Insurance Company Defenses in Pedestrian Injury Claims
Distracted walking is one of the most common insurance company defenses in this area.
Not surprisingly, many trick-or-treaters are so preoccupied with counting their booty and talking with their friends that they neglect basic safety guidelines.
Blaming a child for a car crash is a delicate matter. Yet the insurance company bears the burden of proof, and the burden of persuasion, on this point.
If jurors believe distracted walking was a factor, they must divide fault between the victim and tortfeasor on a percentage basis. New York is a pure comparative fault state.
Even if the victim was 99 percent responsible for the incident, the tortfeasor is still liable for a proportionate share of damages.
Sudden emergency is another common defense. This legal loophole flips liability from the tortfeasor to the victim if the tortfeasor:
- Reasonably reacted to
- A sudden emergency.
Most drivers who hit children pull over, render aid if appropriate, wait for emergency responders to arrive, and cooperate with them fully. So, this first prong is usually present in pedestrian accidents.
The second prong is another matter. Many insurance company lawyers claim the child “darted out into traffic,” so an accident was inevitable.
But a jaywalking pedestrian on Halloween is like a stalled car or a large pothole. Drivers should expect these emergencies and be ready to deal with them. Instead, a sudden emergency a completely unexpected situation.
Have a safe and happy Halloween this year. For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC.
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