Pedestrian Accident Complaint - West Virginia

PEDESTRIAN ACCIDENT COMPLAINT — WEST VIRGINIA

TABLE OF CONTENTS

1. Caption
2. Parties, Jurisdiction, and Venue
3. General Factual Allegations
4. Count I — Negligence (Against Defendant Driver)
5. Count II — Negligence Based on Traffic Statute Violation (Against Defendant Driver)
6. Count III — Negligent Entrustment / Vicarious Liability (Against Defendant Owner)
7. Damages
8. Prayer for Relief
9. Jury Demand
10. Reservation of Rights
11. Signature and Service Blocks
12. West Virginia Practice Notes
13. Sources and References

1. CAPTION

IN THE CIRCUIT COURT OF [COUNTY] COUNTY, WEST VIRGINIA

CIVIL ACTION NO. [________]

COMPLAINT FOR DAMAGES (PEDESTRIAN COLLISION)

JURY TRIAL DEMANDED

Filing note: Submit the completed Supreme Court-prescribed civil case information statement with this complaint, as Rule 8(a)(3), W. Va. R. Civ. P., requires.

Plaintiff, by and through undersigned counsel, alleges as follows:

2. PARTIES, JURISDICTION, AND VENUE

1. Plaintiff [PLAINTIFF NAME] ("Plaintiff") is an individual residing in [COUNTY] County, West Virginia, and at all material times was lawfully present as a pedestrian upon or alongside the public roadways of this State.

2. Defendant [DRIVER NAME] ("Driver Defendant") is, upon information and belief, an individual residing in [COUNTY / STATE] and may be served with process at [SERVICE ADDRESS] pursuant to Rule 4, W. Va. R. Civ. P.

3. Defendant [OWNER / EMPLOYER NAME] ("Owner Defendant") is [an individual / a corporation / an LLC] that, at all material times, owned, controlled, leased, and/or maintained the vehicle operated by Driver Defendant and/or employed Driver Defendant. Owner Defendant may be served at [SERVICE ADDRESS / REGISTERED AGENT].

4. This action arises under West Virginia tort law for personal injuries sustained when a motor vehicle struck Plaintiff, a pedestrian, in [COUNTY] County, West Virginia, on [__/__/____].

5. Subject-matter jurisdiction is proper in this Circuit Court pursuant to W. Va. Const. art. VIII, § 6 and W. Va. Code § 51-2-2, as the claims sound in tort and the amount in controversy exceeds this Court's jurisdictional minimum.

6. Venue is proper in this county under W. Va. Code § 56-1-1 [SELECT SUBSECTION] because [FACTS SATISFYING THAT ROUTE]. Use “does business” only within subsection (a)(2)'s corporate-entity conditions, and complete subsection (c)'s plaintiff-by-plaintiff screening.

3. GENERAL FACTUAL ALLEGATIONS

7. On [__/__/____] at approximately [TIME], Plaintiff was lawfully crossing / walking [DESCRIBE — e.g., within the marked crosswalk at the intersection of ___ and ___; within an unmarked crosswalk at the intersection of ___; along the shoulder facing traffic on ___], in [CITY], West Virginia (the "Collision").

8. At the same time and place, Driver Defendant was operating a [YEAR / MAKE / MODEL] [passenger vehicle / pickup truck / SUV / commercial vehicle] owned by Owner Defendant, traveling [direction] on [ROADWAY].

9. [Where applicable] The traffic signals were [ABSENT / INOPERATIVE / SHOWING WALK / DESCRIBE OTHER SIGNAL STATE]. Plaintiff was in [DESCRIBE THE CROSSWALK AND POSITION]; the facts and applicable signal rules gave Plaintiff the right-of-way [STATE BASIS].

10. Traffic, lighting, and weather conditions were [describe — e.g., clear, dry, daylight; or dusk / nighttime, with Plaintiff in or near a marked crosswalk].

11. The Collision occurred when Driver Defendant [SELECT / DESCRIBE THE MANNER — e.g., failed to yield the right-of-way to Plaintiff in the crosswalk; turned left or right across the crosswalk into Plaintiff's path; failed to keep a proper lookout and struck Plaintiff; was traveling at an excessive or unsafe speed; was distracted by a mobile device; overtook and passed a vehicle stopped at the crosswalk to let Plaintiff cross; ran a red light or stop sign].

12. Plaintiff was [DESCRIBE VISIBILITY] to Driver Defendant. Driver Defendant [DESCRIBE THE FACTS SHOWING FAILURE TO KEEP A LOOKOUT OR EXERCISE DUE CARE].

13. Plaintiff exercised reasonable care for Plaintiff's own safety [STATE SUPPORTING FACTS]. Plaintiff had the right-of-way [IF SUPPORTED BY CROSSING LOCATION AND SIGNAL FACTS].

14. As a direct and proximate result of the Collision, Plaintiff sustained bodily injuries, including [LIST DOCUMENTED INJURIES].

15. The mechanism of the Collision and the nature and extent of Plaintiff’s injuries are [STATE FACTS SUPPORTED BY MEDICAL AND COLLISION EVIDENCE].

16. Plaintiff received emergency care at [HOSPITAL / EMS PROVIDER] and has since undergone [SURGERIES / HOSPITALIZATION / REHABILITATION / ONGOING TREATMENT], and [IF SUPPORTED] will require future medical care.

17. All injuries and damages alleged were the foreseeable, natural, and probable consequence of Defendants' conduct.

4. COUNT I — NEGLIGENCE (Against Defendant Driver)

18. Plaintiff realleges and incorporates Paragraphs 1 through 17 as if fully set forth herein.

19. Driver Defendant owed Plaintiff a duty to exercise reasonable care in the operation of a motor vehicle, to obey the West Virginia rules of the road, to keep a proper lookout for pedestrians, to yield the right-of-way when required by W. Va. Code § 17C-10-2, and to exercise due care to avoid colliding with any pedestrian upon the roadway.

20. Driver Defendant breached that duty in the following ways supported by the Collision facts (select and complete only applicable allegations):

• ☐ Failing to yield the right-of-way to Plaintiff in a crosswalk when W. Va. Code § 17C-10-2 applied;
• ☐ Failing to keep a proper lookout for pedestrians;
• ☐ Operating at a speed unsafe for the conditions and the presence of pedestrians;
• ☐ Driving while distracted, inattentive, or impaired, as shown by [FACTS];
• ☐ Failing to exercise due care to avoid the Collision or to sound a warning when necessary;
• ☐ Overtaking and passing a vehicle stopped at a crosswalk to permit a pedestrian to cross when § 17C-10-2 applied; or
• ☐ Failing to take reasonable evasive action, as shown by [FACTS].

21. Each selected act or omission, separately or in combination as supported by the facts, was a direct and proximate cause of the Collision and of Plaintiff's injuries and damages.

22. As a direct and proximate result, Plaintiff has sustained the damages described in Section 7 below.

5. COUNT II — NEGLIGENCE BASED ON TRAFFIC STATUTE VIOLATION (Against Defendant Driver)

23. Plaintiff realleges and incorporates Paragraphs 1 through 22 as if fully set forth herein.

24. The West Virginia rules of the road impose specific statutory duties on Driver Defendant for the protection of pedestrians such as Plaintiff. These include, as applicable to the manner of the Collision:

• W. Va. Code § 17C-10-2 — when traffic-control signals are absent or inoperative, the driver must yield to a pedestrian in a crosswalk on the driver's half of the roadway or dangerously close from the opposite half, subject to the section's sudden-entry limitation; a following driver may not pass a vehicle stopped for a pedestrian at a marked or qualifying unmarked crosswalk;
• W. Va. Code § 17C-10-4 — every driver shall exercise due care to avoid colliding with any pedestrian upon any roadway, shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing a child or any confused or incapacitated person.

25. Plaintiff is within the class of persons the applicable traffic statute was enacted to protect, and the Collision is the type of harm it was designed to prevent. A violation of a motor-vehicle safety statute is prima facie evidence of negligence; Plaintiff still pleads causation and injury. Shaffer v. Acme Limestone Co., 206 W. Va. 333, 524 S.E.2d 688 (1999).

26. Driver Defendant violated [CITE THE SPECIFIC SECTION(S) APPLICABLE]. Traffic citation, if issued: [IDENTIFY OR STATE NONE]. The identified conduct was a direct and proximate cause of Plaintiff's injuries and damages.

6. COUNT III — NEGLIGENT ENTRUSTMENT / VICARIOUS LIABILITY (Against Defendant Owner)

27. Plaintiff realleges and incorporates Paragraphs 1 through 26 as if fully set forth herein.

28. If Owner Defendant entrusted the subject vehicle to Driver Defendant, Owner Defendant knew, or from the circumstances should have known, that Driver Defendant was incompetent, inexperienced, reckless, or otherwise unfit to drive; [STATE FACTS SHOWING KNOWLEDGE AND UNFITNESS]. Driver Defendant's identified unfitness proximately caused the Collision. Clark v. Shores, 201 W. Va. 636, 499 S.E.2d 858 (1997).

29. Alternatively, if Owner Defendant was Driver Defendant's principal or employer, Driver Defendant was acting as its agent or employee within the scope of that relationship at the time of the Collision; [STATE AGENCY AND SCOPE FACTS]. In that event, Owner Defendant is liable for Driver Defendant's tort under respondeat superior. Barath v. Performance Trucking Co., 188 W. Va. 367, 424 S.E.2d 602 (1992). Ownership of the vehicle alone does not establish this alternative.

30. The negligent entrustment alleged in Paragraph 28, if proven, and Driver Defendant's negligent driving alleged in Paragraphs 19 through 21, if attributable to Owner Defendant under Paragraph 29, caused Plaintiff's injuries and damages as pleaded above.

7. DAMAGES

31. As a direct and proximate result of Defendants' conduct, Plaintiff has suffered and seeks recovery of the following:

• Past and future medical and care expenses — emergency, ambulance, hospital, surgical, diagnostic, rehabilitative, pharmaceutical, physician, assistive-device, and attendant care supported by proof;
• Lost wages and diminished earning capacity — past lost income and the permanent impairment of Plaintiff's ability to earn;
• Physical pain, suffering, and mental anguish — past and future;
• Permanent physical impairment and disfigurement, including scarring from road rash and surgical intervention;
• Loss of enjoyment of life from a proven permanent injury, as part of general damages and without an economic valuation; and
• Property damage to Plaintiff's personal effects, as applicable.

32. Plaintiff seeks each proven category of damage without duplicating amounts between past and future care or among the components of general damages. Wilt v. Buracker, No. 21708 (W. Va. Dec. 13, 1993).

8. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully demands judgment against Defendants as follows:

• A. Compensatory damages in an amount to be determined by the trier of fact, in excess of the jurisdictional minimum of this Court;
• B. Prejudgment interest on any eligible special or liquidated damages, subject to the court's determination after settlements, and postjudgment interest as allowed by W. Va. Code § 56-6-31;
• C. Costs of this action; and
• D. Such other and further relief as the Court deems just and proper.

9. JURY DEMAND

Plaintiff demands trial by jury on all issues so triable as a matter of right, pursuant to Rule 38, W. Va. R. Civ. P.

10. RESERVATION OF RIGHTS

Plaintiff reserves the right to amend this Complaint to add or substitute parties, to assert additional claims, and to conform the pleadings to the evidence as discovery proceeds. Plaintiff denies any contributory fault; under W. Va. Code §§ 55-7-13a and 55-7-13c(c), any such fault reduces recovery and bars it only if Plaintiff's fault exceeds the combined fault of all other responsible persons.

11. SIGNATURE AND SERVICE BLOCKS

Respectfully submitted this [____] day of [MONTH], 20[____].

/s/ [________________________________]

[ATTORNEY NAME] (WV State Bar No. [________])

[LAW FIRM NAME]

Attorney for Plaintiff

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

12. WEST VIRGINIA PRACTICE NOTES

• Statute of limitations. When no more specific period applies, personal-injury damages actions must be commenced within two years of accrual. W. Va. Code § 55-2-12(b). Wrongful-death actions under W. Va. Code § 55-7-6(d) must be commenced within two years after death; use a different complaint if the pedestrian died. Section 55-2-18 permits a limited one-year refiling period after a timely action is dismissed without a merits ruling or a judgment is reversed on a ground that permits refiling. Independently check accrual and any applicable tolling before filing.
• MODIFIED COMPARATIVE FAULT — the central issue. Under W. Va. Code § 55-7-13a, the trier of fact allocates fault by percentage; § 55-7-13c(c) bars recovery only if the plaintiff's fault is greater than the combined fault of all other persons who proximately caused the damages (commonly described as the "51% bar"). The crossing location, signal phase, and both parties' conduct may affect that allocation.
• Several liability and exceptions. Under W. Va. Code § 55-7-13c(a), each defendant generally pays its allocated share of compensatory damages; that subsection permits joint liability for defendants who consciously conspired and deliberately pursued a common tortious plan. Subsection (h) imposes joint and several liability for a defendant whose impaired driving, criminal conduct, or illegal hazardous-waste disposal proximately caused the plaintiff's damages. Plead facts supporting an exception only when evidence warrants it.
• Nonparty fault. Under W. Va. Code § 55-7-13d, the trier of fact may allocate fault to nonparties if the plaintiff settled with the nonparty or a defending party gives notice within 180 days of service identifying the nonparty and the basis for the allocation. Anticipate and rebut an "empty chair" defense.
• The pedestrian's own duties / crosswalk law. West Virginia imposes reciprocal duties: when traffic signals are absent or inoperative, drivers must yield as § 17C-10-2 specifies to a pedestrian in a crosswalk; a pedestrian crossing at a point other than a crosswalk must yield to vehicles (§ 17C-10-3); and pedestrians must obey traffic-control devices (§ 17C-10-1). A violation supplies the defense's comparative-fault theory. Regardless of right-of-way, every driver still owes the independent due-care duty under § 17C-10-4. Investigate the precise crossing location, the signal phase, lighting/conspicuity, and vehicle speed.
• UM/UIM and hit-and-run. Check whether an applicable policy covers this pedestrian as an insured under W. Va. Code § 33-6-31(c) and the policy terms. An unknown-driver claim must meet § 33-6-31(e)'s police-report and carrier-notice conditions, and the vehicle-inspection condition when it applies. The statute generally requires physical contact, but Hamric v. Doe, as quoted in Walker v. Doe, recognizes a narrow exception when independent third-party evidence shows immediate evasive action avoided contact that otherwise would have occurred. Promptly identify and notify every applicable policy, preserve the UM/UIM claim, and comply with consent-to-settle / subrogation procedures before resolving the liability claim. Verify the current UM/UIM and hit-and-run requirements under the applicable policies and West Virginia law (W. Va. Code § 33-6-31).
• Service. Service of process is governed by Rule 4, W. Va. R. Civ. P.; for an eligible nonresident, consider the Secretary of State process routes in W. Va. Code § 56-3-33(a), (c) or, for a nonresident motorist involved in a West Virginia road collision, § 56-3-31(a), (d). Follow the applicable notice, mailing, and insurer-service conditions.
• Interest. W. Va. Code § 56-6-31(b) permits the court to award prejudgment interest on all or part of eligible special or liquidated damages after accounting for settlements. Medical expenses, lost wages, tangible-property damage, and similar out-of-pocket losses are listed special damages. Check the applicable rate and dates; do not calculate prejudgment interest on the full general-damages award.

13. SOURCES AND REFERENCES

• West Virginia Code (Chapter 55 — Actions, Suits and Arbitration; Chapter 17C — Traffic Regulations) — https://code.wvlegislature.gov/
• W. Va. Code § 55-2-12 (limitations) — https://code.wvlegislature.gov/55-2-12/
• W. Va. Code § 55-7-13a (modified comparative fault); § 55-7-13c (several liability); § 55-7-13d (nonparty fault) — https://code.wvlegislature.gov/55-7-13A/
• W. Va. Code § 17C-10-2 (right-of-way in crosswalks) — https://code.wvlegislature.gov/17C-10-2/
• W. Va. Code § 17C-10-3 (crossing other than at crosswalks); § 17C-10-4 (drivers to exercise due care); § 17C-10-1 (pedestrian/traffic-control signals)
• W. Va. Code § 33-6-31 (uninsured/underinsured-motorist coverage)
• West Virginia Rules of Civil Procedure (Rules 4, 8, 38); West Virginia jurisdiction/venue (§ 51-2-2; § 56-1-1)

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in West Virginia must review and customize this document before filing. Laws, citations, and court rules change frequently; verify all authorities before use.