Pedestrian Car Accidents -- When is the Pedestrian at Fault?


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When we think about accidents between cars and pedestrians, our initial assumption is probably that the driver of the vehicle is usually at fault. Most of us have probably heard the old adage "the pedestrian has the right of way," even though that isn't always correct from a legal standpoint. In a pedestrian-vehicle accident, the pedestrian can actually be to blame, wholly or partially. Read on to learn more.

Determining Fault for a Pedestrian-Car Accident

Imagine you see a car hit a pedestrian. You later tell a friend about the accident. The friend asks, “whose fault was it?” You respond, “it was definitely the pedestrian’s fault. He saw an ice cream truck on the opposite side of the street and suddenly ran out into the middle of traffic!”

In a sense, the assignment of fault in a legal claim arsing from a traffic accident is sometimes that simple. The difference is that instead of a witness deciding, it is usually jurors or an insurance adjuster. These folks usually have more information to look at in reaching their decision: the stories of both the pedestrian and the driver, the applicable laws (such as speed limits), the findings contained in the police report, and sometimes expert testimony.

If the driver is clearly at fault for the accident, the pedestrian will usually be able to recover compensation from the driver and/or the driver's insurance carrier for the harm caused, and the insurance carrier likely won't put up much of a fight -- although the initial settlement offer will likely be in lowball territory, so you may need to make a counter-offer.

If the pedestrian bears all of the blame for the accident, the pedestrian will probably not be able to recover compensation for injuries, and the driver may actually be able to sue the pedestrian for compensation for any harm caused to the car, or for any injuries to the driver.

Here are a few common scenarios under which a pedestrian may be found at least partially at fault for an accident involving a vehicle:

  • jaywalking, or crossing in the middle of the street, outside of a crosswalk
  • crossing against the traffic signal (i.e. in the crosswalk but against a red "Do Not Walk" command)
  • entering a street or highway while intoxicated, and
  • walking along highways, bridges, or causeways where pedestrian access is prohibited.

Shared Fault in Pedestrian Accident Cases

In reality, even when a pedestrian does bear some amount of blame for causing an accident, chances are that the driver of the vehicle is also partially at fault. For example, a pedestrian may be jaywalking, but the driver may not have been driving at a safe speed, or may have been distracted and therefore unable to stop in time.

So, what happens when both the pedestrian and the driver are at fault? Different states follow different rules in shared fault situations, but those rules are based on one of two basic legal concepts: comparative negligence and contributory negligence.

Comparative Negligence

 The majority of states follow some version of a comparative negligence rule when an injured person shares some amount of fault for causing or contributing to the underlying accident. Under a "pure comparative negligence" rule, an injured person can receive compensation from any other at-fault party, but the injured person's own damages award (the amount of compensation they can receive) will be reduced by a percentage that is equal to their share of the fault.

As an example, imagine a driver was operating a vehicle while intoxicated. A pedestrian, who has a "Walk" signal, enters an intersection while texting. The driver’s vehicle hits the pedestrian, causing injuries. The pedestrian sues the driver, and the jury determines that the driver was 75% at fault for the accident while the pedestrian was 25% at fault (because an alert pedestrian could have seen the driver coming and avoided the accident). The pedestrian's total damages (medical bills, lost income, etc.) amount to $10,000. In states that follow a "pure comparative negligence" rule, the pedestrian's damages award would be reduced to $7,500, or the total award minus 25%, which accounts for the pedestrian's share of the fault.

The other variation of comparative negligence is "modified comparative negligence." In states that follow this rule, the injured person can collect damages from any other at fault person, as long as the injured person bears less than 50 percent of the blame for the accident.

Contributory Negligence

This is the old school system, but it is still used in a handful of states: Alabama, District of Columbia, Maryland, and Virginia.

Basically, contributory negligence is an all-or-nothing system. If you bear any amount of fault for an accident, you won't be able to file a liability claim against any other at-fault party. So if a car-pedestrian accident occurs in one of the four contributory negligence states, and both parties are partially at fault, both would be responsible for their own injuries and other damages stemming from the crash. They could file a first-party claim through their own insurance coverage, for example, but one party could not pursue a lawsuit against the other.

Learn more about comparative and contributory fault.

by: , J.D.

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