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Lombardi Law Firm

How can a man live and work for 20 years in the same community and no one know him?

Steve Lombardi
Iowa personal injury, workers' compensation, motorcycle, quadriplegic, paraplegic, brain injury, death

Blog Category:
11/13/2012
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IsolationPedestrian cases may appear easy to put together, but thet are anything but easy. For one thing many times the main witness for the plaintiff is dead, meaning you can’t get any testimony from them and the defendant driver’s testimony may go unchallenged. To prepare to challenge the driver's testimony you need hard evidence. This evidence comes from two sources: 1) testimony from independent witnesses and 2) physical evidence from the vehicles and the scene. To preserve both of these you need to get your act together in this very trying time. The way to do it is to quickly hire a lawyer who does this job for you while you grieve.

I can’t stress enough the importance of a good investigation that takes place right after the accident. This role as investigator is a very important one the attorney takes on. My advice to the spouse, relatives and friends is to quickly hire an attorney so they can be investigating while you’re tending to making funeral arrangements or dealing with extensive rehab or hospitalization.

For the lawyers here are a few suggestions on the necessary underpinnings of the pedestrian case. The Lombardi Law Firm works with Iowa's rural lawyers to assist and take over as lead counsel in pedestrian accident cases. We keep you involved, if that is what you wish, or we completely take over the case. Call us if we can assist you or your firm with an Iowa pedestrian accident case. 

Applicable Code Sections under Iowa Law

Iowa Code sections 321.314 and 321.329(1) (2007),

Applicable Uniform Jury Instructions

Iowa Civil Jury Instructions:

No. 600.32. A driver shall not turn a vehicle from a direct course on a highway unless the movement can be made with reasonable safety.  And then only after sounding the horn if any pedestrian may be affected by the movement.

A violation of this law is negligence.

No. 600.52. The driver of a vehicle is required to exercise ordinary care to avoid hitting a pedestrian on a road and shall give warning by sounding the horn when necessary.

A violation of this law is negligence.

Applicable Allegations of Negligence

Under the instructions, the jury could have found defendants negligent in one or more of the following particulars: 

(1) driving at a speed greater than reasonable and proper and without due regard for pedestrian traffic;

(2) failing to exercise ordinary care to avoid hitting a pedestrian;

(3) failing to yield to a pedestrian lawfully within a crosswalk;

(4) driving at a speed greater than that which would have permitted him to stop within an assured clear distance ahead;

(5) failing to have his vehicle under control;

(6) failing to maintain a proper lookout; and

(7) failing to stop and remain stopped until it was safe to proceed.

Court Decisions

Court’s Comments of Interest

“Section 321.325 provides, “Pedestrians shall be subject to traffic-control signals at intersections as heretofore declared in this chapter, but at all other places pedestrians shall be accorded the privileges and shall be subject to the restrictions stated in sections 321.327 to 321.331.”

“See McGill v. Fish, 790 N.W.2d 113, 118 (Iowa 2010).  Under section 321.325, the provisions in sections 321.327 to 321.331 do not apply at intersections regulated by traffic control signals.  Section 321.329(1), which creates a requirement for motorists to “give warning [to pedestrians] by sounding the horn when necessary,”2 comes within these provisions that do not apply where a traffic control signal is employed at an intersection.  We conclude that uniform instruction No. 600.52, which relates to section 321.329(1), does not apply under the facts of this case.”

“We turn then to instruction 600.32, which is based on Iowa Code section

321.314.  Section 321.314 provides as follows:

No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement or after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement.

Section 321.314 applies in three possible factual scenarios:

1. It provides that no person shall turn a vehicle from a direct course upon a highway unless and until such movements can be made with reasonable safety.

2. It further provides that such turn shall be made when the movement from the direct course can be made with reasonable safety and only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement.

3. A vehicle may be turned from a direct course upon a highway if another vehicle is involved only after a signal is made by the operator of the vehicle in the manner provided for in section 321.315.”

Crow v. Weller, 197 N.W.2d 352, 353-54 (Iowa 1972).

News Items

Minimal Crash Report:

 Case Number:

 2012058260

 Type:

 Fatality

 County:

 25

 Crash Date:

 10302012

 Time:

 0708

 Location:

 WILLIS AVE AND 1ST ST

 

 Vehicle 1 Year:

 1985

 Make:

 FORD

 Type:

 F150

 Towed By:

 N/A

 Driver Name:

 DEVILBISS, JERIMIAH

 Age:

 26

 City & State of Residence:

 PERRY,IA

 

 Summary:

 

   

VEHICLE ONE WAS TURNING NORTH BOUND ON 1ST ST , VEHICLE ONE DID NOT SEE PEDISTRIAN AND STRUCK VICTIM IN THE CROSSWALK AREA, PEDISTRIAN DIED AS RESULT OF COLLISION

 

 Officer Name:

 ISP 220 CHAMPLIN

 Post:

 01

 Assisted By:

 ISP 350 , PERRY PD

 

As troopers continue to investigate the collision, they are somewhat stymied by the lack of information about the victim.

While officials believe he has lived and worked in Perry for close to 20 years, the closest family member authorities have been able to track down was a daughter in Mexico.

Identification found with the man listed two variations of a name. Attempts to use dental records or fingerprints have come up empty, said Iowa State Patrol Sgt. Scott Bright.

Cases discussing pedestrians and crosswalks.

1)

 

Supreme Court Opinions

     
 

... it. Nevertheless, he drove the car ten miles over the speed limit, through a red light and into a crosswalk in a school zone, and struck and killed a student, after being unable to stop to avoid the accident. State v. Conyers, 506 N.W.2d 442 (Iowa 1993). In the workers' compensation field we ... [This decision is a little bit different in that the alleged at-fault vehicle was an ambulance on an emergency call. The rules involving rules-of-road for ambulances on emergency runs are far different than ordinary drivers.]

     
     

2)

 

Supreme Court Opinions

     
 

... in Instruction No. 22, which stated: Any pedestrian crossing a road at a point other than a crosswalk shall yield the right of way to all vehicles on the road. A violation of this law is negligence. [In this case the pedestrian was an interstate highway worker struck while working in a road crew on Highway 75.]

     
     

3)

 

Supreme Court Opinions

     
 

... hour over the posted speed limit in a school zone, traveling through a red light and into a marked crosswalk where he struck and killed a nine-year-old on her way home from school. [In this case we have a 3-year-old crossing a residential street with no crosswalk.]

     
     

4)

 

/court_of_appeals/recent_opinions/20090311/9-047.pdf

     
 

... roadway in order to look down the street to see oncoming traffic. There were no sidewalks or crosswalks in the area. She stood for two to three minutes waiting for traffic to clear before she started to cross the street. [In this case there are no crosswalk or sidewalks and we have a college student trying to cross the street. There is evidence, testimony, of the truck accelerating as it approached the accident location.]

     
     

5)

 

/court_of_appeals/recent_opinions/20070328/6-1027.pdf

     
 

... for failure to exercise ordinary care because of his intoxication and for failu re to use the crosswalk. Second, it concluded a jury could have established damages in an amount, when reduced by plaintiff's fault, that would have resulted in a judgment within the policy limits. [This is a bad-faith claim involving the failure to offer an adequate settlement by an insurance company. As such it’s not applicable.]

     
     

6)

 

/court_of_appeals/recent_opinions/20070425/7-206.pdf

     
 

... stop at the first opportunity at either the clearly marked stop line or before enter ing the crosswalk or before entering the intersection or at t he point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering ... [This is a traffic citation case, a criminal case, and it’s not applicable or helpful to our analysis in a civil case.]

     
     

7)

 

Court of Appeals OpinionsMogensen vs Des Moines Regional Transit Authority and Gary Cozad, No. 0-917 / 10-1012, April 12, 2011.

     
 

On the morning of July 17, 2007, Gary Cozad was driving a bus for the Des Moines Area Regional Transit Authority (DART).  The bus was going west on Grand Avenue in Des Moines, when it stopped at a traffic light at the intersection with East Sixth Street.  Cozad testified that when the light changed to a green turn arrow, he turned the bus left onto East Sixth Street.  Another

motorist, William  Brown, agreed the bus moved forward after the light turned green.  As the bus was making the turn, the bus struck George Mogensen, who allegedly was walking through the cross-walk on East Sixth Street, on the south side of the intersection. [The facts of this case involve a city bus striking a pedestrian while in a crosswalk. It seems like a good case for us to read.]

 



Category: Pedestrian Accidents & Injuries


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