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 Per Se (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

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] A pedestrian-control or traffic-control signal [displayed "WALK" / displayed a green light in Plaintiff's direction of travel / was not in place or not in operation], and Plaintiff had the right-of-way and was crossing within the crosswalk.

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 plainly visible to Driver Defendant, who failed to see Plaintiff in time, misjudged the situation, and/or failed to exercise the due care that West Virginia law requires of every driver to avoid colliding with a pedestrian.

13. Plaintiff was exercising reasonable care for Plaintiff's own safety at all material times and had the right-of-way.

14. As a direct and proximate result of the Collision, Plaintiff — an unprotected pedestrian struck by the mass and force of a motor vehicle — sustained severe, painful, and permanent bodily injuries, including but not limited to [LIST INJURIES — e.g., orthopedic fractures, traumatic brain injury, spinal injury, internal injuries, degloving / road rash, and disfiguring scarring].

15. Because a pedestrian has no structural protection, restraint system, or crumple zone, the forces of the Collision caused Plaintiff to suffer catastrophic injuries materially more severe than those typically sustained by occupants of vehicles.

16. Plaintiff received emergency care at [HOSPITAL / EMS PROVIDER] and has since undergone [SURGERIES / HOSPITALIZATION / REHABILITATION / ONGOING TREATMENT], and 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 to a pedestrian lawfully within a crosswalk, and to exercise due care to avoid colliding with any pedestrian upon the roadway.

20. Driver Defendant breached that duty by, among other things:

• Failing to yield the right-of-way to Plaintiff, a pedestrian crossing within a crosswalk;
• Failing to keep a proper and careful lookout for pedestrians;
• Operating the vehicle at a speed greater than was reasonable and prudent for the conditions and the presence of pedestrians;
• Driving while distracted, inattentive, or impaired;
• Failing to exercise due care to avoid colliding with a pedestrian and to sound a warning when necessary;
• Overtaking and passing a vehicle stopped at a crosswalk to permit a pedestrian to cross; and
• Failing to take reasonable evasive action to avoid striking Plaintiff.

21. Each of the foregoing acts and omissions, separately and in combination, 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 PER SE (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 not in place or not in operation, the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be, to a pedestrian crossing the roadway within a crosswalk; and no driver approaching from the rear may overtake and pass a vehicle stopped at a crosswalk to permit a pedestrian to cross;
• 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; and
• W. Va. Code § 17C-10-1 — governing the obedience of pedestrians and drivers to traffic-control and pedestrian-control signals (e.g., "WALK" / "DON'T WALK").

25. Plaintiff is within the class of persons the foregoing statutes were enacted to protect, and the Collision is the type of harm those statutes were designed to prevent.

26. Driver Defendant violated [CITE THE SPECIFIC SECTION(S) APPLICABLE], and was cited for [TRAFFIC CITATION, IF ANY]. Such violation constitutes negligence per se under West Virginia law, and 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. Owner Defendant entrusted the subject vehicle to Driver Defendant when Owner Defendant knew, or in the exercise of reasonable care should have known, that Driver Defendant was an incompetent, inexperienced, reckless, or otherwise unfit driver.

29. Alternatively, at the time of the Collision, Driver Defendant was operating the vehicle as the agent, servant, or employee of Owner Defendant and within the scope of that agency or employment, rendering Owner Defendant vicariously liable under the doctrine of respondeat superior.

30. Owner Defendant's negligent entrustment and/or vicarious liability was a direct and proximate cause of Plaintiff's injuries and damages.

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 expenses — emergency, ambulance, hospital, surgical, diagnostic, rehabilitative, pharmaceutical, and physician care;
• Future medical and life care — anticipated surgeries, therapy, assistive devices, prosthetics, and long-term or attendant care, to be proven at trial;
• 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; and
• Property damage to Plaintiff's personal effects, as applicable.

32. Plaintiff pleads each category of damage separately and in the alternative.

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. Pre-judgment and post-judgment interest as allowed by law;
• 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, any such fault reduces but does not bar Plaintiff's recovery unless it is found to exceed the combined fault of all other 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. Personal-injury actions in West Virginia must be commenced within two years of accrual. W. Va. Code § 55-2-12(b). Wrongful-death actions carry their own two-year period under W. Va. Code § 55-7-6 (verify if the pedestrian was killed). Consider the discovery rule and tolling for minors and persons under disability.
• MODIFIED COMPARATIVE FAULT — the central issue. Under W. Va. Code § 55-7-13a (effective for causes accruing on or after May 25, 2015), a plaintiff's recovery is reduced in proportion to the plaintiff's fault and barred 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"). This is the dominant strategic feature of a pedestrian case, because the defense will frame the pedestrian as having "darted out," jaywalked, or crossed against a signal to push the pedestrian's share over the bar.
• Several liability and the joint-liability exceptions. Under W. Va. Code § 55-7-13c, liability for compensatory damages is several only, so each defendant generally pays only its proportionate share. Joint and several liability survives, however, for a defendant who (1) was driving under the influence of alcohol or drugs, (2) committed criminal conduct that proximately caused the injury, (3) consciously conspired with another, or (4) illegally disposed of hazardous waste (§ 55-7-13c(h)). In an impaired-driver pedestrian case, this exception can be outcome-determinative — plead the impairment facts.
• 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: drivers must yield to a pedestrian in a marked or unmarked crosswalk at an intersection (§ 17C-10-2); 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. A pedestrian struck by a motor vehicle may recover under their own automobile uninsured/underinsured-motorist (UM/UIM) coverage — and under the UM/UIM coverage of a resident relative's policy — even though the pedestrian was not in a vehicle, because pedestrians are typically "insureds" for UM/UIM purposes. UM coverage also responds to a hit-and-run / phantom vehicle, subject to prompt-reporting and physical-contact requirements. 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.; out-of-state defendants may be served under West Virginia's long-arm statute (W. Va. Code § 56-3-33) or the nonresident-motorist statute (W. Va. Code § 56-3-31).

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.