Pedestrian Car Accidents: Could the Pedestrian Be at Fault?

In some situations, a pedestrian may be partially or wholly to blame for causing an accident.

Updated by , J.D.
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  • Car accidents involving pedestrians tend to end with a disparity of damage—significant injuries to the pedestrian coupled with little or no damage to the vehicle and no injuries to its occupants. Pedestrians are certainly in a vulnerable position on the road. But that doesn't mean fault for a car-pedestrian accident is always clear-cut:

    • Both pedestrians and drivers must act with reasonable care on the roads and highways, and failure to meet the appropriate "duty of care" can amount to negligence.
    • Contrary to the popular adage "pedestrians always have the right of way," a pedestrian can share some amount of legal fault for an accident.
    • State personal injury law rules on "shared fault" can affect how much compensation an injured pedestrian can receive if they're partly to blame for the accident.

    How to Determine Fault In a Pedestrian Accident Case

    Certainly, there are accident scenarios in which a vehicle driver is clearly at fault for hitting a pedestrian. Running a stoplight, failing to stop at a designated crosswalk, and making a right turn on a red light in front of a crossing pedestrian are just a few common examples.

    But in general, pedestrians are deemed to have a better chance of avoiding car accidents, compared with vehicle drivers. It's not hard to see why. Car accidents involving pedestrians do not often occur outside the roadway; and pedestrians are the ones who typically determine when, and whether, they leave a sidewalk or highway shoulder to enter a roadway.

    So, how to sort it all out from a legal standpoint? As with most other personal injury claims, the law of negligence determines fault in accidents between vehicles and pedestrians.

    Pedestrians' and Drivers' "Duty of Care"

    A key concept of personal injury law says that every person is expected to exercise a reasonable level of care under a given set of circumstances. For example, drivers and pedestrians are expected to obey traffic laws and the "rules of the road" when using the streets, highways, crosswalks. If Person A fails to act with reasonable care and ends up causing harm to Person B, the law considers Person A negligent, regardless of who was driving and who was walking.

    So, if a pedestrian fails to exercise reasonable care in some way, and that failure causes a car accident, the pedestrian will be considered at fault. For example, if a pedestrian is hit while jaywalking from between parked cars and into the path of an oncoming vehicle, and the driver of the vehicle cannot avoid hitting the pedestrian, the pedestrian will probably be considered at fault for the accident. Likewise, if the driver of the vehicle had sufficient time to take evasive measures, but those measures resulted in the driver crashing into the parked cars instead of hitting the pedestrian, the pedestrian will be liable for any damage to the vehicles and for any injuries to the driver.

    Learn more about car accidents caused by negligence.

    Shared Fault In Pedestrian-Car Accident Cases

    Sometimes both a driver and pedestrian are at fault for a car accident. Recall the example above, where the pedestrian was jaywalking. If the driver was also speeding (going 45 in a 25 mph zone, let's say), both the pedestrian and the driver would probably be at fault for the accident.

    The outcome of a personal injury lawsuit where both the driver and a pedestrian are at fault varies from state to state. Some states have adopted a contributory negligence system. Most have adopted a comparative negligence system. Let's take a look at how these rules work.

    Contributory Negligence

    Only a handful of states subscribe to this system. Essentially, under contributory negligence, if the defendant can show that the plaintiff's negligence contributed to the accident to any extent (even one percent), the plaintiff is barred from recovering anything at all from the defendant. This system can cause some pretty harsh results for plaintiffs, but the good news is that when it comes to car-pedestrian accidents, the contributory negligence rule is only followed in Alabama, Maryland, North Carolina, Virginia.

    Note: Washington, D.C. also follows the contributory negligence rule in many personal injury scenarios, but a special law carves out an exception for pedestrians who are injured in traffic accidents. Under Code of the District of Columbia section 50-2204.52, a pedestrian can sue a motorist after a car-pedestrian accident, as long as the pedestrian's share of fault was 50 percent or less.

    Comparative Negligence

    Comparative negligence allocates fault between parties. A defendant's liability may be reduced, but not necessarily eliminated, if the plaintiff is partly at fault for the accident. There are two variations of the comparative negligence system:

    Pure Comparative Negligence

    Liability is split according to the percentage of fault. So, if the pedestrian is deemed 30 percent responsible, the driver is said to be 70 percent responsible, and the pedestrian's damages total $10,000, the pedestrian will be able to collect from $7,000 from the driver.

    Modified Comparative Negligence

    Liability is split according to the percentage of fault -- to a certain level. Once a plaintiff meets, or exceeds that level, the plaintiff is barred from recovery. That limit is typically 50%. In other words, if a plaintiff is more than 50% at fault for the accident, the plaintiff is barred from recovering anything at all from the defendant.

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

    What Kinds of Damages Are Available After a Pedestrian-Car Accident?

    In the language of the law, the term "damages" refers to someone's compensable losses. After a car-pedestrian accident, it's possible for both the pedestrian and the driver to have a claim for damages against one another. But practically speaking, if the driver was uninjured and there's no real damage to the driver's vehicle, the driver isn't going to have any compensable damages. The interplay of a given state's shared fault rules and the circumstances surrounding a car-pedestrian accident typically result in either:

    • the injured pedestrian being able to pursue an injury claim against the driver (despite the pedestrian sharing some measure of fault), or
    • the fault issue essentially acting as a barrier to the pedestrian's ability to recover any compensation at all after the accident.

    An injured pedestrian—assuming they're able to pursue a claim against the driver's insurance company, or file a lawsuit—can usually recover for a wide variety of damages, including:

    • medical bills and the cost of necessary future treatment
    • income lost as a result of the accident, and the economic impact on the pedestrian's ability to earn a living going forward
    • mental and physical "pain and suffering" resulting from the accident, the injuries, and necessary medical procedures, and
    • loss of enjoyment, emotional distress, and other more subjective (non-economic) losses.

    Statute of Limitations In Pedestrian-Car Accident Claims

    A statute of limitations is a law that sets a time limit on the right to file a lawsuit after you've suffered some kind of injury or harm.

    When a pedestrian is injured in a car accident, any lawsuit against the driver will be based on personal injury law, and each state has its own statute of limitations for these kinds of cases. Get details on the personal injury statute of limitations.

    If the vehicle owner wants to make a claim against an at-fault pedestrian for vehicle damage, the state's statute of limitations for property damage lawsuits will come into play.

    Getting Help After a Pedestrian-Car Accident

    If you've been injured as a pedestrian in a car-versus-pedestrian incident, and the driver of the vehicle that hit you (or their insurer) is accepting anything less than full legal liability for what happened, it may be time to discuss your situation with an experienced attorney.

    Find out more about how a car accident lawyer can help you and get tips on how to find the right one for your case. You can also use the tools on this page to connect with a lawyer. Answer a few questions and receive a free case evaluation from a car accident attorney near you.

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