Hit by a car as a pedestrian, with surgery needed

Attorney Answer

A surgically repaired ankle fracture is a serious, well-documented injury, and the medical side of your claim is the part that will look after itself. The part that needs your attention is Alabama's contributory negligence rule, which is harsher for a pedestrian than for almost any other claimant.

To recover from the driver you have to show they were negligent — that they failed to use reasonable care and that this caused your injuries. On the face of it, a driver striking a person on foot is not a difficult case to make. Speed, attention, the light, whether they were looking where they were going: these are the ordinary questions and they usually favor the pedestrian.

Then Alabama adds something that most states do not.

Alabama is one of a handful of states that still applies contributory negligence, and it changes everything about a claim here. If the person claiming is found to have been negligent themselves, and that negligence helped cause the injury, they recover nothing — not a reduced amount, nothing. There is no apportionment and no percentage.

Two things soften that, and both matter.

It is a defense the other side has to prove. Contributory negligence is an affirmative defense, so the burden is on the defendant to establish it rather than on the claimant to disprove it. And it is not established simply by showing carelessness: the defendant generally has to show the claimant knew of the danger, appreciated it, and failed to take reasonable care anyway. Alabama's courts have said that simple heedlessness is not enough, and that it is normally a question for a jury rather than something decided as a matter of law.

And it is no defense at all to wanton conduct. Where the other party's behavior goes beyond ordinary negligence to wantonness, contributory negligence does not bar the claim. That makes how the other driver's conduct is characterized one of the most consequential questions in an Alabama case.

Why this bears down on pedestrians particularly. In a collision between two cars, both drivers were doing broadly the same thing and the argument is about degree. When a pedestrian is struck, the driver's defense has an obvious and specific target: where you crossed, whether you used a crossing, whether you looked, whether you stepped out, what you were wearing, whether you were on a phone. Any of those, if it amounts to a want of reasonable care for your own safety that helped cause the collision, does not shrink your claim — it ends it.

Two things keep that in proportion. The driver has to prove it, and proving it takes more than asserting you should have been more careful. And it is no answer at all to wanton conduct, so if the driver's behavior went beyond ordinary negligence the rule does not protect them.

What follows from all this is practical. Because your own conduct in the seconds before impact is where the case will be fought, the evidence about those seconds matters more than the evidence about your injury. Your medical records are already being created by the hospital. Nobody is creating the record of where you were standing, what the light was, or what a nearby camera saw — and that material has a short life.

One thing to be careful about in the meantime: an adjuster asking in a friendly way what you were doing just before it happened is asking the question the whole case turns on.

What you can do

1. Get the crash report and check how it describes where you were and what you were doing. If that description is wrong, it is much easier to address now than later. 2. Find out whether any nearby business, home or traffic camera covers the spot, and ask for the footage in writing straight away. Most systems overwrite within days or weeks. 3. Get the names and numbers of any witnesses, including anyone who helped you or called for help. 4. Photograph the location — the crossing, the sightlines, the lighting, any obstruction — at the same time of day as the collision. 5. Keep every medical record, and follow the treatment plan without gaps. An unexplained break in treatment is the standard argument that an injury was not as serious as claimed. 6. Do not give the driver's insurer a recorded statement about what you were doing before the impact, and take advice before you discuss it at all. 7. Speak to an Alabama attorney early. Contributory negligence makes this a state where an unrepresented claimant can lose everything on a point that would only have cost them a percentage elsewhere.

⏱ Time limits apply. Ala. Code § 6-2-38(l) gives two years: “all actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.” Evidence goes sooner — footage is overwritten and memories fade — so the practical deadline is usually much earlier than the legal one.

An Alabama attorney can tell you quickly how the facts here line up, and most will look at a matter like this at no cost.