Panzera v. O’Neal and Publix – When Pedestrian May be At-Fault for Collision With Vehicle

Florida is known to have a pedestrian accident problem. Nationally, 4,735 pedestrians were killed an an estimated 66,000 injured in 2013, the latest year from which figures are available from the National Highway Traffic Safety Administration (NHTSA). highway5

Florida ranks No. 2 in the nation for the most pedestrian accidents that year – 501, to California’s 701. When population was factored in, Florida was also No. 2 – tallying 2.56 pedestrian fatalities per 100,000 population, versus Delaware, which had 2.70 pedestrian fatalities per 100,000 people. Delaware counted a total of 25 pedestrian deaths that year. According to the Florida Pedestrian and Bicycle Strategic Safety Plan, Broward County ranked No. 2 in the state for both fatalities and injuries. Miami-Dade ranked No. 1 for both.

Pedestrian crashes are more likely to result in fatal or serious crashes than any other type of traffic accident. Most of these incidents happen mid-block without crosswalks, at intersections, areas influenced by intersections, at driveway access points, railroads, bridges and public bus stops. Parking lots too can also be dangerous areas.

In most cases of vehicle vs. pedestrian, it is the motor vehicle driver who is to blame. The driver doesn’t see the pedestrian or isn’t paying proper attention. Many victims may be entitled to compensation via a number of different avenues, but it will depend on the circumstances. Pedestrian accident victims and their loved ones must seek experienced legal council because despite the statistics, there is still much that has to be proven in order to secure damages against a driver. This is especially true where a pedestrian may have shared some responsibility for what happened.

To be clear: Sharing part of the blame does not mean a pedestrian can’t collect damages. It does mean overall damages are likely to be reduced. The exception will be if a court determines the pedestrian was solely the one at fault.

That’s what was alleged in the recent Florida Second District Court of Appeals case of Panzera v. O’Neal and Publix, where a pedestrian entered and attempted to cross a multi-lane interstate on foot one morning shortly before 3 a.m. According to court records, Anthony Panzera, 25, walked to the interstate, climbed a fence and entered the interstate, where he was struck by a semi tractor-trailer driven by a Public employee. Pedestrian was wearing a dark shirt and there were no street lights in the area where this occurred The truck speed was capped at 65 mph – 5 mph below the speed limit. Truck data recorders indicated the 45-year-old driver did attempt to stop suddenly, but was unable to avoid a collision.

No criminal charges were filed in the case, as a Florida Highway Patrol trooper concluded Panzera caused the crash and there was nothing the trucker could have done differently to avoid it. Panzera’s parents filed a wrongful death lawsuit against the driver and his employer. The problem was they submitted no evidence to refute the expert witness testimony and conclusions from the FHP. Trial court granted summary judgment, and parents appealed. The 2nd DCA affirmed.

The court cited case law in noting that in a negligence lawsuit, summary judgment would be improper unless defendant can establish unequivocally the absence of negligence OR that plaintiff’s negligence was the sole proximate cause of injury. That is, plaintiff’s can collect damages on even 1 percent of defendant’s fault.

Here, the appellate court noted plaintiffs had raised only speculative, rather than genuine, issues of material fact. The only evidence presented was testimony from the pedestrian’s parents, who insisted the truck driver could have done more to avoid the crash, and these conclusions were based only on their own personal review of the scene post-crash. Neither have any experience in accident reconstruction and they weren’t there at the time of the crash. Therefore, the court ruled these assertions aren’t admissible or reliable and summary judgment was proper.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Panzera v. O’Neal and Publix, Dec. 2, 2015, Florida’s Second District Court of Appeal

More Blog Entries:

Fatal Florida Car Accident Reported During Test Drive of a Vehicle, Dec. 6, 2015, Fort Lauderdale Pedestrian Accident Lawyer Blog

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