When we think about fault for traffic accidents between cars and pedestrians, our initial assumption is probably that the driver of the vehicle is to blame. Most of us have probably heard the old adage "the pedestrian has the right of way," but that isn't always correct from a legal standpoint. In a pedestrian-vehicle accident, the pedestrian can actually be at fault, in whole or in part. Read on to learn more.
Imagine you see a car hit a pedestrian. You later tell a friend about the accident: “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 personal injury claim arising 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 a pedestrian 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 damage 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:
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.
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 ("damages") 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 files a personal injury lawsuit against 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 50 percent or less (the percentage varies slightly) of the blame for the accident.
This is the old (and harsh) rule, but it is still used in a handful of jurisdictions: Alabama, District of Columbia, Maryland, and Virginia.
Basically, contributory negligence is an all-or-nothing system. If you're found to bear any amount of fault for an accident, you won't be able to collect damages in court from any other at-fault party. Learn more about comparative and contributory negligence in personal injury cases.