Traffic accidents involving pedestrians can lead to significant injuries, and while a driver's fault for the accident is often clear, there are situations in which a pedestrian can share some amount of blame. There are also a few key steps drivers can take to protect their legal position after these kinds of accidents. Here's what to know at the outset:
It's natural to feel upset after any kind of accident. Take a deep breath and focus on the following:
Stop your car. If you're a driver involved in a pedestrian accident, the first thing you need to do is stop your vehicle. You can't go back in time to prevent the accident from happening, but you can make things worse for yourself and the pedestrian you hit if you flee the scene (see below for more on hit-and-run consequences).
Safety comes first. First, get any injured people to a place of safety. Do not attempt to administer medical treatment unless there's an obvious emergency situation and you have proper training.
Get medical help. Next, contact medical care providers, and call local law enforcement. Give truthful statements about how the accident took place to any first responders.
Exchange contact information, but not much more. Exchange information with everyone involved in the accident. If the pedestrian is not incapacitated, exchange names, phone numbers, email addresses, and insurance information. Avoid talking extensively with the pedestrian or others. Admitting fault, or making statements such as "I feel so guilty," could affect things later on claim/lawsuit-wise, so be careful of what you say.
Gather evidence about the accident. Take pictures of crosswalks, traffic signal devices, vehicle damage, and anything else that might help tell the story of the accident and how it happened. Get names and contact information of any witnesses who might have seen what happened. Learn more about evidence to gather after a car accident.
Hold onto any documents relevant to the accident. That includes any police report that's generated in connection with the crash, and any vehicle damage estimates or repair bills.
Keep a record of what happened. When you get home, write out (on paper or in digital form) exactly what happened, as best as you can remember. You can use your notes to refresh your memory if you end up facing criminal or civil consequences down the road.
Contact your car insurer. It's crucial to call your insurance company to report the accident as soon as possible. Your policy requires you to notify your insurance company promptly of any incident that could trigger coverage, and you might lose your coverage if you don't.
Note: If you're facing possible criminal charges for the accident for a violation such as driving under the influence, you might want to contact a criminal defense attorney soon after the accident.
When a vehicle hits a pedestrian at higher speeds, it's no surprise that serious injuries and fatalities can result. But a driver can seriously injure a pedestrian while driving at just 10 miles per hour. The disparity inherent in these kinds of accidents—vulnerable pedestrian versus heavy, powerful vehicle—can muddy the biggest question in these kinds of cases: Whose fault was it? Generally, fault is determined by the law of negligence. In oversimplified terms, a person who fails to exercise reasonable care under the circumstances may be considered "negligent."
A driver can be negligent in a car-versus-pedestrian accident (and therefore at fault) by:
A pedestrian can be at fault (at least partially) for a car-versus-pedestrian accident if they were, among other examples:
The driver and the pedestrian can share fault for a traffic accident. For example, the pedestrian may be jaywalking while the driver is traveling in excess of the posted speed limit. This scenario is treated differently in different states.
Some states, such as Maryland and Virginia, follow what's called a "pure contributory negligence" rule. This means that if the pedestrian contributed in the slightest bit to the accident, they cannot recover damages from the driver (or from the driver's auto insurance company) in court.
Other states follow a "comparative fault" rule. This means that a pedestrian can recover some damages even if they were partly at fault, although when the pedestrian's share of fault exceeds the driver's, recovery of damages from the driver might not be possible.
Keep in mind that while contributory and comparative negligence laws only come into play in court, an insurance adjuster will have the state's shared fault rules in mind when valuing an injury claim and engaging in settlement talks.
Learn more about car accidents and contributory and comparative negligence.)
Chances are a law enforcement officer will come to the scene of a car-versus-pedestrian accident, especially if there are significant injuries. The responding officer will diagram the location of the accident, talk to the parties involved, interview witnesses, and consider other relevant information, all of which will go into a police report.
The police report may include the officer's impressions or preliminary findings as to how or why the accident happened, whether any traffic violations might have occurred in connection with the crash, and other factors impacting a fault determination.
The insurance company will certainly get its hands on the police report, but the company will conduct its own investigation of the accident, how it happened, the nature and extent of injuries suffered by those involved, the details of property damage, and more. Learn more about how the insurance company investigates a car accident case.
If you believe that the insurance company was wrong in finding you wholly at fault for the car-versus-pedestrian accident, or that the insurer assigned you an incorrect percentage of fault, there are a number of steps you can take.
First, ask the insurance company for a detailed basis for their findings. If you think they've based their decision on incorrect or incomplete information, make your own counter-argument with as much supporting evidence as you can find.
If the insurance company's finding might expose you to significant personal financial responsibility, or if you just want help setting things right, you might want to consider discussing your situation with an experienced lawyer. More on this later on.
Get more information on disputing fault after a car accident.
Injured pedestrians are usually covered under their health and disability insurance policies, or worker's compensation coverage, if the accident occurs on the job. They may also be covered under one or more auto insurance policies.
An injured pedestrian can usually file a claim against the driver's or vehicle owner's auto liability insurance policy. Almost all states require that vehicle owners and drivers carry liability insurance to cover personal injuries to third parties, and damage to third parties' property. Recoveries are dependent on who caused the accident and insurance policy details.
A dozen or so "no-fault" states require insurance companies to pay for the medical expenses and lost wages of their own policyholders and certain other covered individuals, regardless of who is at fault for the underlying. This is also known as personal injury protection (PIP).
In most no-fault states, a driver's PIP insurance will also cover a pedestrian hit by the insured vehicle, unless the pedestrian has their own car insurance policy.
If the pedestrian truly has no injuries after a traffic accident, there can be no insurance-related injury claim, and no personal injury lawsuit against the driver. A personal injury claim requires actual harm of some kind.
But remember, even scrapes and bruises could justify the filing of an injury-related insurance claim, especially if the pedestrian feels the need to get examined at the ER (or at their doctor's office) to make sure nothing more serious is at play.
And perhaps the most important thing to keep in mind here is that just because a pedestrian seems fine immediately after a car-versus-pedestrian accident, you can't rely on that remaining the case. People who are in traffic accidents usually experience a release of adrenaline and endorphins, which can mask pain.
The fact that the pedestrian walked away from the scene probably won't affect the legitimacy of any injury claim the pedestrian ends up making.
As touched on above, endorphins and adrenaline can cover up pain. So a pedestrian who appears uninjured and even walks away from the scene might notice significant discomfort a few hours or even days later. Learn more about when and why accident injuries don't show up right away.
In case you're wondering, state law might require the pedestrian to remain at the scene of a traffic accident, exchange information, and take certain other steps. But the pedestrian's failure to do these things, even when required under the law, probably won't affect their right to make an injury claim over the accident, if you or another driver were at fault.
It's pretty rare for the driver in a car-versus-pedestrian accident to take legal action against the pedestrian, even if the pedestrian violated the law at the time of the accident, and was wholly (or mostly) at fault. That's because a pedestrian almost always comes away from these kinds of accidents worse off than the driver, even when there's significant vehicle damage.
One situation where it might make sense (and may be worth the time and money) to take legal action against a pedestrian is if the driver swerved to avoid hitting a jaywalking pedestrian, but did extensive damage to their vehicle when they drove off the roadway. Here, the pedestrian is likely at fault for the crash, and was uninjured, while the driver may have incurred thousands of dollars in property damage and may have suffered significant injuries.
The main drawbacks to any situation in which a driver might sue a pedestrian are:
The best way to avoid pedestrian accidents is to understand that "defensive driving" means being aware of people who walk, use a bicycle, operate a wheelchair, rollerblade, rollerskate, ride an electric scooter, and play in the road. Pay particular attention to young children and older adults, who may be less aware of drivers on the road, more likely to stray outside crosswalks, and not pay attention to traffic signals. Learn more on the NHTSA's Pedestrian Safety portal.
If you're a driver who's been involved in a car-versus pedestrian accident, even if it's pretty clear that the crash was your fault, you probably won't need to hire your own lawyer, as long as you've got car insurance. That's because, if the pedestrian makes an injury claim with your insurance company, the insurer will investigate the crash and resolve the claim without involving you.
And if the pedestrian files an injury lawsuit against you, your insurance company has a "duty to defend" you against any claim arising from a covered accident. That duty includes paying for a lawyer to represent you in court (of course, the lawyer is also representing the insurance company's interest in paying as little as possible to the injured pedestrian).
If you hit a pedestrian and you don't have car insurance, you'll need to pay for any lawyer you hire; usually that means a personal injury defense lawyer who charges by the hour for their services. Learn more about how personal injury lawyers get paid.
Special thanks to David Snyder, vice president and assistant general counsel of the American Insurance Association.