Is the Driver Always at Fault in a Pedestrian vs. Car Accident?

Usually the driver is liable in a pedestrian-car accident - but that's not always the case.

Drivers are required to be extra cautious when a pedestrian is present or is likely to be present. But pedestrians are not faultless in all situations. In fact, a pedestrian might even be liable for a driver’s damages after a car-pedestrian accident, depending on the circumstances. This article discusses the law regarding liability when it comes to car versus pedestrian accidents.

The Driver’s Duty of Care

All drivers are responsible for driving carefully under the given circumstances. In the realm of personal injury law, this responsibility is called a duty of reasonable care or due care. The driver is held to the standard of what a normal, careful and prudent person would do in the same circumstances. When driving, not all circumstances are the same.

The law holds that a normally cautious person is extra vigilant and maintains their car under strict control when they know a pedestrian is nearby or might be nearby. For example, somebody might be driving their car at the 25 mile an hour speed limit and still be liable for an accident if they didn’t slow down as soon as they saw a young child wobbling on a bike ahead -- the argument being that any normally cautious person would slow down in that kind of a situation.

When a Pedestrian Is Responsible for the Accident

A normal, cautious person would take steps to avoid hitting a pedestrian in any situation if at all possible. However, if the pedestrian acts in way that makes it impossible for someone driving in a normal, cautious manner to avoid a collision, a judge or jury will find that the pedestrian caused the accident.

For example, if a driver is going the speed limit through a commercial district and a pedestrian runs out from behind a parked car just a few feet in front of the driver’s car, the driver will not be held liable. In fact, even if the driver was going five or ten miles over the speed limit, but the pedestrian jumped out so close to the car that the driver could not have avoided the collision at any speed, the driver will likely still not be held liable (although they both might be held at fault to different degrees, see below).

If a pedestrian jumps out or behaves in some other manner that forces someone driving in a normal, cautious manner to take evasive maneuvers, the pedestrian will be held liable for any damages those maneuvers cause. For example, if a pedestrian walks along a freeway at night in dark clothing and a driver swerves into another vehicle when she sees the pedestrian at the last second, the pedestrian will probably be held liable for any injuries to the occupants of both vehicles, and for any vehicle damage resulting from the drivers' efforts to avoid hitting the pedestrian.

When Both the Driver and the Pedestrian Contributed to the Accident

Not all accidents have one completely guilty party and one completely innocent party, and that includes car-pedestrian accidents. Often, both parties may have been acting in a manner that was not normal and cautious under the circumstances.

Depending on the state, there are two different ways this situation can affect a lawsuit. In any state, a jury is required to find what percentage (if any) a plaintiff contributed to the accident that led to his or her own injuries.

For example, a jury may say that a plaintiff pedestrian who was jaywalking was 60% responsible, and the speeding driver that hit the pedestrian (and who the pedestrian then sued) was 40% liable. In some states, the defendant driver would be required to pay the plaintiff pedestrian for 40% of the pedestrian’s losses associated with the accident (called "damages").

In other states, however, the defendant driver would not be required to pay anything because the plaintiff pedestrian was more than 50% responsible for the accident, so he or she cannot get compensation from any other at fault party. See Shared Blame: Comparative and Contributory Fault for a Personal Injury for more detail on this concept.

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