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

The driver is usually at fault when a car and pedestrian collide—but that's not always the case.

By | Updated by Stacy Barrett, Attorney
Was a police report filed?
  • When a car collides with a pedestrian, the pedestrian typically ends up with much more significant injuries than the driver of the car. But that doesn't mean drivers are always at fault (liable) for pedestrian-car accidents. In some cases, pedestrians are partially or entirely to blame for an accident.

    In this article, we'll cover:

    • how the law determines fault in a collision involving a car and pedestrian
    • what happens when a driver and pedestrian share blame for an accident, and
    • who pays for accident-related losses ("damages") when a car and pedestrian collide.

    Who is Liable for a Pedestrian-Car Accident?

    If you've been involved in a pedestrian-car accident, one of the first legal issues you'll need to consider is liability. The person who is at fault (liable) for the accident—driver or pedestrian—typically has to pay for damages.

    In most cases, proving liability means proving someone was negligent (careless). To prove negligence, you'll have to show:

    • the person who caused the accident had a legal responsibility (called a "duty of care") to avoid harming you
    • the person who caused the accident violated (breached) that duty of care
    • the breach of duty caused the accident, and
    • the breach of duty led to your injuries and losses (damages).

    All people on the road (drivers, pedestrians, cyclists) have a legal duty to follow traffic laws and use common sense. (The law often describes common sense as acting like how a "reasonable person" would act in a similar situation.)

    Sometimes it's easy to determine who is liable for a pedestrian-car accident. For example, when a speeding driver hits a pedestrian in a clearly marked crosswalk, the driver is at fault. Or when a jaywalking pedestrian wearing all-black clothing is struck after darting in front of a car at night, the pedestrian is to blame.

    In other situations, deciding liability is more difficult. For example, let's say a driver hits a pedestrian who was crossing the street outside of an intersection. The driver wasn't speeding, but it was light outside and the pedestrian was wearing a bright pink jacket. Is the jaywalking pedestrian at fault for the accident? Or would a "reasonable person" have spotted the pedestrian in time to stop? Or could the pedestrian and driver both be at fault for the collision? (See below for more on shared fault in pedestrian accidents.)

    What Happens When a Pedestrian Is at Fault for a Car Accident?

    It's easy to assume that drivers are at fault for collisions with pedestrians. Pedestrians are more likely to be seriously injured in a collision with a car and most people have grown up hearing that pedestrians "have the right."

    But pedestrians can be negligent too. A pedestrian might be negligent and liable for an accident when the pedestrian:

    • crosses a street in an area other than a crosswalk
    • doesn't follow a traffic signal
    • walks on a road where pedestrians are prohibited (not allowed), or
    • darts in front of a car without giving a driver enough time to stop.

    Pedestrians who are at fault for an accident, not only have to foot their own accident-related bills, but might also be responsible for paying for other people's damages. For example, let's say Meghan is walking near a park. She sees a beautiful tree that she wants to take a picture of and post on social media. She is looking at her phone when she runs into the street. She doesn't see the car that is just a few yards away from her. The driver swerves to avoid her, but clips her leg and hits an oncoming car.

    Meghan is at fault for the accident. She will have to turn to her own insurers or pay out of pocket for her medical bills and other losses. And both drivers can file insurance claims (and potentially personal injury lawsuits) against her to cover their own accident-related losses.

    Shared Fault in Pedestrian-Car Accidents

    Sometimes pedestrian-car accidents happen because all people involved in the accident were careless. For example, a speeding driver might collide with a jaywalking pedestrian. So, what happens when both the driver and pedestrian are at fault?

    Laws about shared blame situations vary from state to state. Some states follow a "pure comparative negligence" rule. In a pure comparative negligence state, you can recover compensation if you're partially to blame for an accident. But your compensation is reduced by your percentage of fault for the accident.

    Returning to our example of the jaywalking pedestrian who was hit by the speeding driver: Let's say an insurance adjuster finds the jaywalking pedestrian's accident-related losses total $100,000. The adjuster also finds that the jaywalker was 40% responsible for the accident and the speeding driver was 60% responsible. Under pure comparative negligence rules, the driver must pay the jaywalker $60,000 ($100,000 reduced by 40%, the degree of blame assigned to the jaywalker.)

    In "modified comparative negligence" states, you can recover damages from an accident in proportion to your degree of fault, so long as you are less than 50% at fault.

    A handful of states follow an all-or-nothing rule called "contributory negligence". Under this system, if you contributed even the slightest bit to an accident, you can't get compensation. Under this system, the jaywalking pedestrian would get nothing from the speeding driver.

    Learn more about contributory and comparative negligence in car accident cases.

    Legal Options After a Pedestrian-Car Accident

    If you're injured in a pedestrian-car accident, you need to figure out who might be responsible (liable) for your accident-related losses. Options likely include one or more of the following:

    • the drivers involved in the accident (or the employers of the drivers if the drivers were on company business at the time of the accident)
    • the owners of the cars involved in the accident if the owners are different from the drivers
    • anyone who contributed to the accident (like a pedestrian or a government agency who failed to properly maintain a road or crosswalk signal), and
    • your own auto and health insurers.

    To try to get full compensation, you should submit an insurance claim against all potentially responsible parties. You might receive a settlement offer right away, or you might need to negotiate to get fair compensation. If the insurer denies part or all of your claim, you can file a personal injury lawsuit. (Learn more about steps in a personal injury lawsuit.)

    How Much is a Pedestrian-Car Accident Claim Worth?

    Each pedestrian-car accident is unique, so it's impossible to predict how much an individual claim might be worth. But most insurance adjusters (and judges and juries) look at:

    • the severity of your injuries
    • your past and future medical expenses
    • lost income (past and future), and
    • pain and suffering (mental and physical).

    Economic losses like medical bills and lost income are fairly easy to calculate. But "pain and suffering" is largely subjective and harder to put a number on. Learn more about how lawyers, adjusters, and courts calculate pain and suffering in a personal injury case.

    Know When to Hire a Pedestrian Accident Lawyer

    If you've been involved in a pedestrian-car accident, you're probably worried. You might be wondering who is responsible for paying your medical bills or you might be wondering if you're on the financial hook for someone else's accident-related losses. A lawyer can help you figure out who is at fault for a pedestrian-car accident, answer your questions, and explain your legal options.

    Learn more about when to hire a lawyer after a car accident. You can also fill out the form at the top or bottom of this page to connect with an auto accident lawyer for free.

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