What If a Pedestrian Is Hit While Jaywalking?

A pedestrian must follow traffic rules, just like anyone else who is using the roads and highways, so liability for a car-versus-pedestrian accident isn't always clear.

By , J.D. · Villanova University School of Law

Whenever there's a traffic accident between a pedestrian and a vehicle, the pedestrian will almost always end up getting the worst of it. So, partly because of the laws of physics, it's easy to think that the driver of the vehicle is always at fault for the accident. But this isn't always the case--it is possible for the pedestrian to be at fault, especially if the pedestrian was jaywalking or violating some other traffic rule. Read on to learn more.

"Shared Fault" in a Pedestrian-Car Accident

Everyone must follow the rules of the road. It is against the law for a pedestrian to jaywalk, or walk on areas of a highway or road where pedestrian traffic is not permitted. Pedestrians must also obey traffic signals and signage where applicable, just like drivers.

If a pedestrian fails to follow these rules, 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 the pedestrian is able to recover (including compensation for injuries) 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 he or she can ultimately recover from other at-fault parties. There are two variations of this rule, and the vast majority of states follow one or the other.

Modified comparative negligence first requires that the plaintiff's level of fault not exceed a certain threshold before the plaintiff can recover anything. Depending on the state, this threshold will often be 50%. So if the plaintiff is 50.1% (or more) at fault for causing the accident, they recover nothing. But if they're 50% at fault (or less), they can recover from other parties, though total damages will be reduced by the injured person's 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. 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 will be able to recover at least something. For example, a pedestrian walks through an intersection that has posted "no crossing" signs and the pedestrian gets hit by a driver. If a court concludes that the pedestrian is 95% at fault and the pedestrian suffers $100,000 in medical bills, 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.

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.

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, up to coverage limits. But keep in mind that compensation for pain and suffering and other non-economic losses are not available in a no-fault/PIP claim.

If the accident occurs in a traditional "fault" 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.

Learn more about Car Accidents With Pedestrians.

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