Pedestrian & Cyclist Traumatic Brain Injury

When a vehicle strikes a pedestrian or cyclist, the injuries are often more serious than the driver, and the insurance company, initially acknowledge. Traumatic brain injury (TBI) is especially vulnerable to this problem: emergency room providers are focused on ruling out immediately life-threatening conditions, early imaging may appear normal, and the full cognitive or neurological effects may not become clear for days or weeks after the crash. Insurance companies often rely on that early uncertainty to minimize the claim, dispute the injury, or push for resolution before the full medical picture is known. After nearly a decade on the defense side of injury claims, working with insurers, adjusters, and risk professionals, I know how that valuation strategy works, and how to build the evidence needed to counter it. As an Albuquerque personal injury lawyer, I focus my practice on the most complex categories of New Mexico injury claims, pedestrian and cyclist TBI cases are one of them.

Find Out What Evidence May Matter

Pedestrian and bicycle injury claims in New Mexico are often subject to the three-year personal injury statute of limitations under NMSA § 37-1-8, and pedestrian right-of-way in crosswalk cases may be governed by NMSA § 66-7-334. New Mexico applies pure comparative fault under NMSA § 41-3A-1, which generally means a damages recovery is reduced, not automatically barred, by the injured person’s percentage of fault. Under the New Mexico Child Helmet Safety Act, NMSA § 32A-24-5 provides that failure to wear a protective helmet “shall not limit or apportion damages,” and New Mexico does not impose a statewide bicycle helmet requirement on adults. Uninsured and underinsured motorist (UM/UIM) coverage under NMSA § 66-5-301 may apply to pedestrian and cyclist injury claims through a household auto policy even when the injured person was not inside a vehicle, depending on the policy language, insured status, and if any valid UM/UIM rejection or limitation is in effect during the policy period.

Why Pedestrian and Cyclist TBI Cases Require a Different Strategy

The ‘Invisible Injury’: Why TBI Is Frequently Underdiagnosed, and Undervalued

Traumatic brain injury (TBI) is often called the “invisible injury” because its most significant effects may not be visible on the outside and may not appear immediately after a crash. A CT scan performed in the emergency room may come back normal or “unremarkable” even when a concussion or mild traumatic brain injury may still be present. Symptoms such as cognitive slowing, memory problems, irritability, difficulty concentrating, headaches, dizziness, and sensitivity to light or sound can take days or even weeks to emerge, by which point the insurance company may already have early medical records or recorded statements describing the injury as manageable, minor, or improving. That gap between the first emergency room visit and the later development of TBI symptoms is one of the most important vulnerabilities in a pedestrian or bicycle brain injury claim.

The term “mild TBI”, including what is commonly called a concussion, does not mean the injury is minimal. Mild traumatic brain injury can lead to post-concussion syndrome, with symptoms that may last for weeks, months, or, in more serious cases, significantly longer. The Glasgow Coma Scale (GCS) measures acute neurological presentation shortly after injury; it is not generally designed to measure the full long-term impact of cognitive, emotional, or functional impairment. In more severe cases of head trauma, diffuse axonal injury (DAI), microscopic damage to the brain’s axons caused by rotational forces during impact, may occur even when standard CT imaging appears normal. In appropriate cases, a neuropsychological evaluation performed by a qualified clinician may identify deficits in memory, processing speed, attention, executive function, or emotional regulation that were not documented during the initial emergency visit. Those findings can become critical evidence in understanding the true impact of a TBI claim, and in countering an insurance company’s attempt to minimize the injury based on a normal CT scan or early emergency room record.

Coverage Layers When You Don’t Have a Car, UM/UIM and the Full Policy Stack

When a driver hits a pedestrian or cyclist, the insurance analysis can be very different from a standard two-vehicle crash. The at-fault driver may have only New Mexico’s minimum liability coverage, or may have no valid insurance at all. That risk is not theoretical; New Mexico historically is one of the states with the highest rates of uninsured drivers. That is why one of the first questions in a serious pedestrian or bicycle traumatic brain injury case is not just “Who caused the crash?” but “What insurance coverage may apply?” Under New Mexico’s Uninsured/Underinsured Motorist (UM/UIM) statute, NMSA § 66-5-301, automobile liability policies delivered or issued for delivery in New Mexico must include UM/UIM coverage unless that coverage is expressly rejected in writing. UM/UIM coverage may matter when the at-fault driver has no insurance, has too little insurance, leaves the scene, or cannot be identified. In a pedestrian or cyclist brain injury case, UM/UIM coverage may be available through the injured person’s own auto policy, or through a household policy if the injured person qualifies as an insured under that policy. This can be true even if the injured person was walking or riding a bicycle rather than occupying a vehicle at the time of the crash.

In New Mexico, UM/UIM coverage and stacking issues are highly fact-specific and should be carefully evaluated by an attorney who is experienced and qualified to analyze coverage. Depending on the policy language, the number of vehicles insured, the injured person’s status under the policy, and whether UM/UIM coverage or stacking was validly rejected, multiple layers of coverage may need to be investigated. That is why a serious TBI claim should not be evaluated based only on the at-fault driver’s visible insurance card. A full coverage analysis may include the driver’s liability policy, the injured person’s UM/UIM coverage, household UM/UIM coverage, umbrella or excess coverage, commercial policies, and any available coverage tied to the vehicle owner or employer.

The same coverage investigation matters when the vehicle was being used for work. If the at-fault driver was operating a delivery vehicle, rideshare vehicle, work truck, fleet vehicle, or other company vehicle, the employer’s commercial insurance may provide coverage beyond an ordinary personal auto policy, the same multi-layer coverage investigation that a commercial vehicle accident attorney would apply in fleet or delivery vehicle crash cases. If the vehicle was operated by a city, county, state, or other public entity, the New Mexico Tort Claims Act may apply, including a very short and strict 90-day notice requirement and statutory damages limits, which is why those cases should be reviewed by a New Mexico Tort Claims Act lawyer as soon as possible after the crash. If defective road design, missing signage, poor lighting, malfunctioning traffic signals, or unsafe crosswalk conditions contributed to the crash, a separate public-entity or roadway-liability theory may also need to be evaluated.

The goal is not to assume every coverage layer applies. The goal is to identify every policy, every insured relationship, every vehicle owner, every employer, and every public entity that may affect recovery before evidence disappears and before an insurance company frames the case around the lowest available policy limit.

Proving Fault When the Driver Points the Finger Back at You

New Mexico Comparative Fault and the Insurance Industry’s Victim-Blaming Playbook

New Mexico follows a ‘pure comparative negligence’ system of liability under NMSA § 41-3A-1. That means a pedestrian or cyclist who is found partially at fault for a crash may still recover damages, but the recovery can be reduced in proportion to that person’s share of fault. New Mexico’s comparative fault is a balanced system where every person, even the plaintiff, is responsible for only their percentage of negligence. However, it is often one of the first tools insurance companies use to reduce the value of pedestrian and bicycle accident claims.

In many pedestrian and cyclist injury cases, the defense looks for facts that shift blame away from the driver and onto the vulnerable road user. In pedestrian cases, insurers may argue that the injured person crossed outside a marked crosswalk, entered the roadway unexpectedly, was distracted, wore dark clothing, or failed to keep a proper lookout. In bicycle accident cases, they may argue that the cyclist was riding against traffic, failed to use lights, did not follow traffic-control devices, or was positioned improperly in the roadway. Each argument is designed to increase the injured person’s comparative-fault percentage and reduce the insurer’s exposure.

After nearly a decade on the defense side of injury claims, I have seen how these arguments are built from the inside, and I know what evidence is needed to combat them. Intersection-camera footage, nearby surveillance video, dashcam footage, witness statements, roadway photographs, signal timing, lighting conditions, sight lines, and crash reconstruction evidence can all matter. The goal is to preserve the facts before the insurance company turns a pedestrian or cyclist brain injury case into a victim-blaming strategy.

Driver Negligence, Right-of-Way Violations, and Commercial Vehicle Involvement

Pedestrian and bicycle crashes in Albuquerque often involve driver conduct that is negligent, unlawful, or both. Common liability issues include failure to yield at marked crosswalks or controlled intersections, distracted driving, mobile phone use behind the wheel, speeding in areas with heavy pedestrian and cyclist traffic such as Central Avenue, Nob Hill, the UNM area, Downtown Albuquerque, Paseo del Norte, and Rio Grande Boulevard, failure to check for cyclists before opening a vehicle door, unsafe turns, impaired driving, and driving under the influence of alcohol or drugs. New Mexico law requires drivers to exercise due care to avoid colliding with pedestrians, and NMSA § 66-7-334 requires a driver to yield the right of way to a pedestrian crossing within a crosswalk when traffic-control signals are not in place or not operating. Evidence of these violations, including cell phone records, toxicology results, traffic signal timing data, dashcam footage, intersection camera footage, 911 calls, police field notes, and nearby surveillance video, can become central to proving liability.

When the at-fault vehicle is a commercial or company vehicle, such as a delivery van, rideshare vehicle, service truck, construction vehicle, work pickup, fleet vehicle, or company car operating in the Albuquerque metro area, the claim may involve more than the individual driver. Depending on the facts, the employer or vehicle owner may be legally responsible under the doctrine of respondeat superior if the driver was acting within the course and scope of employment. Additional claims may also need to be investigated, including negligent entrustment, negligent hiring, negligent training, negligent supervision, vehicle maintenance failures, driver qualification issues, dispatch pressure, delivery-route timing, or corporate safety policies that contributed to the crash. When the commercial vehicle is also subject to federal oversight, such as trucks governed by Federal Motor Carrier Safety Administration (FMCSA) regulations, additional evidence sources may exist, including driver qualification files, hours-of-service logs, drug and alcohol testing records, and inspection reports. These cases require the same early evidence preservation, coverage investigation, and multi-defendant analysis used by a commercial vehicle accident attorney in fleet and delivery vehicle cases.

Commercial vehicle cases can become especially complex when the vehicle displays a corporate logo but the driver is classified as an independent contractor, delivery partner, app-based driver, or third-party vendor. That label does not automatically decide liability. The real questions may include who owned the vehicle, who controlled the route, who set the delivery schedule, who supervised the work, who maintained the vehicle, what insurance policies applied, and whether the company’s conduct contributed to the crash. In serious pedestrian or cyclist TBI cases, those questions should be investigated early before driver logs, app data, dispatch records, vehicle inspection records, surveillance footage, and electronic communications disappear.

Securing the Digital Record, Why Immediate Action Is Critical to Preserve Evidence

When a vehicle strikes a pedestrian or cyclist in the Albuquerque area, the evidence window begins closing immediately. Video may exist from traffic cameras, automated speed-enforcement systems, nearby businesses, residential doorbell cameras, dashcams, transit vehicles, police units, or fleet vehicles, but each system may have a different retention period, and some systems may not record continuously at all. In serious pedestrian and bicycle traumatic brain injury cases, preservation efforts should begin within hours or days, not weeks, because once video is overwritten, a vehicle is repaired, or a witness disappears, the case may be left with an incomplete record.

This matters especially in Albuquerque corridors where pedestrian and cyclist crashes are more likely to involve multiple sources of digital evidence, including Central Avenue, Paseo del Norte, Lomas Boulevard, Nob Hill, Downtown Albuquerque, the UNM area, Rio Grande Boulevard, and areas near the Paseo del Bosque Trail. The City of Albuquerque’s TrafficView intersection camera system and other public-safety camera programs may capture footage from major corridors, though retention schedules vary and systems may not record continuously, while Community Connect allows law enforcement to identify registered private cameras near an incident. Those systems can be useful investigative starting points, but they should not be treated as a substitute for immediate preservation demands to businesses, property owners, drivers, employers, public entities, and insurers.

Digital vehicle evidence may be just as important. Many modern passenger vehicles and light trucks are equipped with event data recorders (EDRs), sometimes called vehicle “black boxes,” that may record crash-related data such as speed, braking, throttle input, and related vehicle information in the seconds before impact. That data can be lost or become difficult to obtain if the at-fault vehicle is repaired, salvaged, sold, destroyed, or returned to a fleet before inspection. For serious pedestrian or cyclist TBI cases, preservation demands should address not only the vehicle itself, but also EDR data, dashcam footage, telematics, GPS data, app-based delivery records, driver logs, dispatch records, maintenance records, post-crash inspection records, and electronic communications.

If the at-fault vehicle was operated by a government entity, such as an ABQ Ride bus, APD patrol vehicle, public works truck, school vehicle, or other city, county, or state fleet vehicle, additional urgency applies. Dashcam footage, body-camera footage, bus-camera footage, dispatch logs, 911 recordings, incident reports, traffic-signal records, and maintenance records may need to be requested through the New Mexico Inspection of Public Records Act (IPRA), while separate evidence-preservation demands are sent to the responsible public entity. An IPRA request is not the same thing as a tort-claim notice and should not be treated as a substitute for preserving legal rights under the New Mexico Tort Claims Act. Additionally, IPRA requests can take many months to receive a response. In cases involving wrongful death from a pedestrian accident, these same evidentiary sources can be critical for surviving family members.

Failure to preserve evidence after a preservation demand is issued, a failure courts may treat as spoliation of evidence, can have serious legal consequences for the party responsible for the loss. The goal is to secure the digital record before the insurance company, vehicle owner, employer, government entity, or third-party vendor frames the case around incomplete evidence. A formal preservation demand should go out as soon as possible after the crash. My background on the defense side of injury claims gives me direct insight into which evidence defense teams look for first, which evidence disappears fastest, and why preservation demands must be sent before the record is gone.

• Traffic, Intersection, and Public-Safety Camera Footage: City of Albuquerque cameras near corridors such as Central Avenue, Lomas Boulevard, Paseo del Norte, Downtown Albuquerque, Nob Hill, and the UNM area, retention varies, and some systems may not record continuously.
• Private Surveillance Cameras: Business cameras, residential doorbell cameras, parking lot cameras, and nearby property cameras, footage may be overwritten quickly unless preserved.
• EDR / “Black Box” Data: Crash-related vehicle data that may show speed, braking, steering, throttle input, and other pre-impact information.
• Driver’s Cell Phone and App Data: Records showing texting, calls, app use, GPS/navigation activity, rideshare activity, or delivery-app use near the time of impact.
• Dashcam, Vehicle Camera, and Fleet Video: Dashcam, in-cab, transit, fleet, or nearby vehicle footage, often controlled by drivers, employers, insurers, fleet operators, platforms, or public entities.
• Traffic Signal and Intersection Data: Signal timing, pedestrian crossing data, crosswalk activation records, and traffic-control maintenance records.
• Government Vehicle Records, If Applicable: Dispatch logs, dashcam footage, body-camera footage, bus-camera footage, route data, and maintenance records, may require IPRA requests and separate preservation demands.
• Commercial Vehicle and Employer Records, If Applicable: Driver files, delivery logs, dispatch records, GPS data, telematics, route schedules, inspection records, maintenance records, and safety policies.
• Toxicology and Driver History: Alcohol testing, drug screening, field sobriety evidence, license status, prior violations, prior crashes, and citation history.
• Witness Statements: Scene witnesses, nearby businesses, first responders, passengers, other drivers, pedestrians, and cyclists, memories fade quickly.

Preserve Critical Evidence, Call Now

Frequently Asked Questions, Pedestrian and Bicycle Accident TBI in New Mexico

What should I do if I think I have a TBI after being hit by a car as a pedestrian or cyclist in New Mexico?

Your first priority after any pedestrian or bicycle accident involving a possible head injury is medical evaluation by a qualified medical professional. Even symptoms that seem minor at first, such as a headache, brief confusion, dizziness, nausea, sensitivity to light or sound, or simply feeling “off”, may be signs of a traumatic brain injury. TBI symptoms can evolve over hours or days, and prompt medical evaluation helps protect your health while creating an early record of your condition.

If you are able and it is safe, gather as much information as possible at the scene. Obtain the driver’s name, insurance information, vehicle description, and license plate, as well as the names and contact information of any witnesses. Take photographs of the vehicle, the crash location, the roadway, traffic signals, crosswalks, lighting conditions, bicycle damage, personal property damage, and any visible injuries. This information can become critical later, especially if the driver disputes what happened or evidence is lost. If the driver leaves the scene, becomes combative, or you feel unsafe, do not confront them or escalate the situation, move to a safe location and call 911.

Do not give a recorded statement to the driver’s insurance company before speaking with an attorney. Insurance adjusters often ask questions that can later be used to minimize or dispute the seriousness of a brain injury claim. This is particularly important in TBI cases because early statements, made before symptoms fully develop, may later be used to argue that the injury was minor, temporary, unrelated, or resolved. Brain injuries can be more complex than they feel in the first hours or days after a crash, and statements like “I’m okay” or “I think I’m fine” can be taken out of context before the full medical picture is known.

Contact an attorney as soon as possible because evidence such as intersection camera footage, dashcam video, witness information, and EDR / “black box” vehicle data may be overwritten, lost, or difficult to obtain if it is not preserved quickly.

Can I recover damages if I was not wearing a helmet when I was hit on my bike in New Mexico?

In most cases, yes. Not wearing a bicycle helmet does not automatically prevent an injured cyclist from recovering damages in New Mexico. As of 2026, under NMSA § 32A-24-5, failure to wear a protective helmet “shall not limit or apportion damages.” New Mexico’s Child Helmet Safety Act does require minors to wear a properly fitted protective helmet when riding a bicycle, scooter, skates, skateboard, or similar device, but adults are not subject to the same statewide bicycle helmet requirement.

That does not mean the insurance company will ignore the helmet issue. In a bicycle accident involving a concussion, traumatic brain injury, or other head injury, an adjuster may still try to use the absence of a helmet to minimize the claim, question injury causation, or pressure the injured cyclist into accepting less than the case deserves. The key point is that helmet non-use is not the same thing as causing the crash. The driver’s conduct, failure to yield, distracted driving, unsafe passing, speeding, impaired driving, or violating bicycle right-of-way rules, must still be evaluated independently.

If you were hit by a car while riding a bicycle in New Mexico and were not wearing a helmet, do not assume you have no case. A serious bicycle TBI claim should be reviewed based on the crash facts, roadway evidence, medical records, causation issues, comparative fault arguments, helmet issues, and all available insurance coverage before any settlement is considered.

What if the driver who hit me had no insurance or not enough insurance to cover my TBI?

If the driver who struck you had no insurance or not enough liability insurance, your recovery may not be limited to the driver’s visible policy limits. Under New Mexico’s uninsured/underinsured motorist (UM/UIM) statute, NMSA § 66-5-301, automobile liability policies delivered or issued for delivery in New Mexico must include uninsured motorist and underinsured motorist coverage unless that coverage is rejected in writing. Because UM/UIM coverage can be rejected, the actual policy documents must be reviewed before anyone assumes the coverage exists. UM/UIM coverage may apply when the at-fault driver has no insurance, has too little insurance, leaves the scene, or cannot be identified.

In a pedestrian or bicycle traumatic brain injury case, UM/UIM coverage may be available through your own auto policy or through a household policy if you qualify as an insured under that policy. This can include situations where you were walking or riding a bicycle rather than occupying a vehicle at the time of the crash. New Mexico also has favorable law on UM/UIM stacking, but stacking is not automatic in every case. The available coverage may depend on the policy language, the number of insured vehicles, your relationship to the named insured, whether UM/UIM coverage or stacking was validly rejected, and all available insurance policies.

If household UM/UIM coverage is not available or is not enough, other recovery sources may still need to be investigated. If the vehicle that struck you was a commercial vehicle, delivery vehicle, rideshare vehicle, company car, work truck, or fleet vehicle, a commercial policy or employer-related coverage may apply. If a government vehicle was involved, a claim under the New Mexico Tort Claims Act (NMTCA) may be possible, but those cases are subject to a very short notice requirement and statutory damages limits. If a defective road design, missing crosswalk marking, poor lighting, unsafe intersection, or malfunctioning traffic signal contributed to the crash, a roadway-liability or public-entity claim may also need to be evaluated.

The key point is that a serious pedestrian or bicycle TBI claim should not be evaluated based only on the at-fault driver’s insurance card. A full coverage investigation should examine liability insurance, UM/UIM coverage, household policies, possible stacking, commercial coverage, public-entity responsibility, roadway defects, and any umbrella or excess policies before any settlement is considered.

How is a TBI claim valued in a New Mexico personal injury case?

TBI claims are among the most complex personal injury cases to value. In pedestrian and bicycle accident cases, early settlement offers may not reflect the full long-term impact of a traumatic brain injury, especially when symptoms are still evolving or specialized testing has not yet been completed. Damages in a New Mexico TBI case generally include both economic and non-economic losses. Economic damages may include past and future medical expenses, rehabilitation, therapy, medication, assistive care, lost income, and lost earning capacity. Lost earning capacity can be especially important when a brain injury affects memory, concentration, processing speed, emotional regulation, or the ability to perform job duties over time.

Non-economic damages may include pain and suffering, loss of enjoyment of life, emotional distress, personality or behavioral changes, sleep disruption, loss of independence, and the impact of the injury on relationships and daily functioning. These harms can be difficult to document because the effects of a mild TBI or post-concussion syndrome may not be visible on the outside and may not fully appear in the emergency room record. That is why TBI valuation often depends on more than the initial CT scan, discharge paperwork, or early symptom report.

In serious TBI cases, a meaningful damages analysis may require a careful review of medical records, neurological evaluations, neuropsychological testing, treating-provider opinions, vocational expert analysis, wage-loss evidence, and, when appropriate, a life care plan addressing future medical, therapeutic, and support needs. The value of a TBI claim also depends on liability, comparative fault, available insurance coverage, causation evidence, prognosis, and how the injury affects the person’s work, family life, and daily functioning. Before accepting any settlement, the claim should be evaluated based on the full medical, vocational, and economic record, not just the insurance company’s early assessment.

How long do I have to file a lawsuit after a pedestrian or bicycle accident in New Mexico?

For many New Mexico pedestrian and bicycle injury cases involving a private driver, the general personal injury statute of limitations is three years under NMSA § 37-1-8. However, shorter deadlines may apply, and depending on the circumstances, the three-year window may not be the deadline that matters most. If a city, county, or state government vehicle or public entity is involved, the New Mexico Tort Claims Act (NMTCA) may require written notice within a very short period, often 90 days from the date of the crash. If a federal vehicle or federal employee is involved, such as a US Postal Service truck, military vehicle, or federal agency vehicle, the Federal Tort Claims Act (FTCA) has its own separate administrative-claim procedures and deadlines. Claims involving minors, uninsured or underinsured motorist coverage, public roadway defects, or government-maintained traffic signals can also create separate timing issues that should be reviewed early.

The practical evidence deadline is usually much shorter than the legal filing deadline. Traffic-camera footage, automated camera data, nearby business surveillance video, residential doorbell footage, dashcam footage, witness information, and event data recorder / “black box” vehicle data may be overwritten, lost, or difficult to obtain if preservation efforts do not begin quickly. Some systems may not record continuously, and different agencies, businesses, fleet operators, and property owners may follow different retention practices. Once digital evidence is overwritten or a vehicle is repaired, salvaged, sold, or transferred, that evidence may be impossible to recover.

New Mexico’s three-year statute applies to many personal injury actions, but it should not be treated as permission to wait. The safer course is to have the crash facts, potential defendants, notice requirements, insurance issues, and evidence-preservation needs reviewed as early as possible after a serious pedestrian or bicycle TBI crash.

Free Consultation, No Fee Unless There Is a Recovery

Medical and Legal Disclaimer: This page is for general informational purposes only. It is not medical advice and does not diagnose, treat, or evaluate any medical condition. If you believe you may have suffered a concussion, traumatic brain injury, or any other injury, seek evaluation from a qualified medical professional. This page is also not legal advice and does not create an attorney-client relationship. Every case depends on its specific facts, deadlines, medical records, and available evidence.