What If a Pedestrian Is Hit While Jaywalking?

Whenever there's a traffic accident between a pedestrian and a vehicle, the pedestrian will almost always end up worse off, mostly because of the laws of physics. It may go against assumptions, but it's possible for the pedestrian to be at fault for this kind of accident, especially if they were jaywalking or violating some other traffic rule.

What Is "Jaywalking"?

From drivers and motorcyclists to bicycle riders and pedestrians, everyone must follow the rules of the road. It's against the law for a pedestrian to "jaywalk," but what does that mean?

"Jaywalking" is something of an informal, catch-all term that applies when a pedestrian disobeys traffic signals or otherwise violates a traffic or safety-related law. This could include:

• walking across a street against a traffic signal
• crossing traffic in the middle of a street where there are designated crosswalks
• walking on a highway, freeway, or bridge where pedestrian traffic isn't permitted.

"Shared Fault" in a Pedestrian-Car Accident Case

If a pedestrian jaywalks or otherwise fails to follow the rules of the road, and that failure plays a part in an accident, the pedestrian will probably be found at least partially at fault.

Practically speaking, this means any "damages" (compensation) the pedestrian is able to recover from other at-fault parties may be lowered. The exact role that a pedestrian's negligence will play in a legal claim will depend on the "shared fault" rules in place where the accident occurred, specifically, whether the state follows contributory or comparative negligence.

Contributory Negligence

This rule states that an injured person's negligence in connection with the underlying accident, no matter how slight, will bar the person from any financial recovery from other at-fault parties. For instance, if a pedestrian jaywalked and was then hit by a driver who was speeding, the pedestrian will recover nothing from that driver. This is a very harsh rule, and very few states apply it (Alabama, Maryland, North Carolina, Virginia, and Washington D.C.)

Comparative Negligence

Under this rule, the plaintiff's level of fault determines the total amount they can ultimately recover from other at-fault parties. There are two variations of this rule.

Modified comparative negligence first requires that the plaintiff's level of fault not exceed a certain threshold before the plaintiff can recover anything from other parties. This threshold is usually either "less than 50 percent" at fault or "not more than 50 percent" at fault depending on the state. So if the plaintiff meets the threshold, they can recover from other parties, though their total damages will be reduced by their share of fault.

Let's look back at the previous example of the jaywalking pedestrian and speeding driver, to explain how this works. If the pedestrian sustained $50,000 in injuries and a judge or jury concluded that the pedestrian was 40% at fault while the reckless driver was 60% at fault, the pedestrian would be able to recover only $30,000 (60 percent of the $50,000). But if the judge or jury concluded that the pedestrian was 55% at fault, the pedestrian would recover nothing under modified comparative negligence rules.

Pure comparative negligence has no fault threshold. As long as the plaintiff wasn't 100% at fault, they'll be able to recover at least something. For example, a pedestrian walks through an intersection that has posted "no crossing" signs, and gets hit by a driver. If a court concludes that the pedestrian is 95% at fault and the pedestrian suffered $100,000 in damages, the pedestrian can only legally recover $5,000 from the driver.

Determining Fault for an Accident

You can see how important these fault percentages really are, so how do judges and juries come up with these numbers? They look at all the relevant facts and rules to determine how the pedestrian and driver should have acted at the time of the accident.

Besides who obeyed (or disobeyed) a traffic rule, another important factor in calculating fault is due care: who exercised it, and who didn't? For example, even if a pedestrian had the right of way when crossing the street, if they were listening to music on their phone with ear buds, while texting, and failing to look both ways before crossing the street, a judge or jury is likely to impose a certain level of fault on the pedestrian.

This is because even though the pedestrian had the right of way, they still should have exercised due care by staying aware of their surroundings and doing everything they could reasonably do to avoid getting injured.

Learn more about proving fault for a traffic accident.

What If Jaywalking Is Now Legal Where You Live?

In recent years, places like California and New York City have de-criminalized jaywalking and other pedestrian behavior that, in the past, might have drawn a traffic citation. In jurisdictions like this, even if jaywalking isn't technically illegal, pedestrians (and everyone else on the road) still need to exercise reasonable care and caution. So, crossing a street against a traffic signal or in the middle of a block—whether or not it's technically a traffic violation—will likely be deemed negligent conduct if the pedestrian is injured in a traffic accident.

How Does a Pedestrian Get Recovery for Accident Injuries?

How an injured pedestrian recovers compensation will depend on who was at fault for the accident, and where the accident occurred.

If the accident occurs in a traditional "fault"-based car insurance state, the pedestrian can recover from the other driver by making a third party car insurance claim under the driver's liability coverage, but unless the insurer accepts the argument that the driver was totally at fault for the accident, settlement might not be easy. Especially when injuries are significant and things get contentious, it may make sense to turn the matter over to an experienced attorney.

If the pedestrian was completely at fault for the accident, in a "fault state" the pedestrian's own health insurance policy may be the only avenue of payment for medical treatment.

Are Pedestrians Covered In No-Fault Car Insurance States?

Generally speaking, if the accident occurs in a no-fault car insurance state, either the pedestrian's or the driver's own car insurance policy (specifically, the "personal injury protection" or "PIP" coverage) will pay to treat the pedestrian's injuries, even if the pedestrian was at fault. So, a jaywalking pedestrian can probably get at least one car insurance company to pay for medical bills and certain other economic losses in no-fault states, up to coverage limits. But keep in mind that compensation for pain and suffering and other non-economic losses isn't an option in a no-fault/PIP claim.

Learn more about car accidents with pedestrians.