Most people think that because pedestrians have “the right of way,” it follows that pedestrians can never be at fault for an auto vs. pedestrian accident. But contrary to what you might think, the driver is not always automatically responsible. From a legal standpoint, both drivers and pedestrians have a duty to exercise reasonable care on the roads and highways. A driver or pedestrian who fails to exercise such care will be considered negligent if his or her action causes an accident.
When the Driver is Evidently At Fault
If the driver is clearly at fault for the accident, the pedestrian will usually be able to recover compensation from the driver and/or the driver’s insurance carrier for the harm caused. The insurance carrier likely won’t put up much of a fight, although the initial settlement offer will likely be low, so a counter offer may be in order. it will be important for them to retain the legal services of a pedestrian accident attorney who can provide a proper defense on their behalf.
What Happens if the Pedestrian is At Fault?
If the pedestrian bears all of the blame for the accident, the pedestrian will probably not be able to recover compensation for injuries. In fact, the driver may be able to sue the pedestrian for compensation for any harm caused to the car or for any of the driver’s injuries.
One situation that would demonstrate liability for the pedestrian is if he or she walks into the path of the oncoming vehicle and the driver is unable to avoid hitting them. Additionally, if the driver was able to avoid hitting the pedestrian but such measures resulted in the driver hitting parked vehicles instead, the pedestrian can be held liable.
Here are some other examples of behavior that could result in a pedestrian being found responsible for an injury accident:
- Leaving a place of safety to enter the roadway
- Crossing highways or other busy roads without traffic controls
- Walking along bridges, highways, or other areas where pedestrians have no legal access (unless it is an emergency situation)
- Crossing outside of the crosswalk
- Crossing against traffic control signals
- Failing to look before crossing the street and running into the path of oncoming vehicles
Cases Involving Partial Responsibility
Sometimes, law enforcement officials will find that both the driver and the pedestrian were partially responsible for the accident. So, what happens then? It depends on the state where the accident occurred, but usually, the state will follow a set of rules in shared fault situations, these are based on two legal concepts: comparative negligence and contributory negligence.
Some states adhere to a pure contributory negligence rule which prohibits a pedestrian from recovering damages from a driver if the pedestrian’s negligence is found to have played any role in the accident (even if it is a minor one). Basically, contributory negligence is an all-or-nothing system. So if a car-pedestrian accident occurs in a contributory negligence state, and both parties are partially at fault, both would be responsible for their own injuries and other damages stemming from the crash.
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. In that case, the damages the pedestrian may recover will be reduced by a percentage that equals the pedestrian’s share of fault.
If you or someone you know has been in an automobile accident involving a pedestrian, contact us at
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Get to Know the Author
Attorney Jonathan Walner is the managing attorney and shareholder of Walner Law Group. He handles a wide range of personal injury cases, especially those involving motorists. If you've been hit by a vehicle as a pedestrian or have reason to believe a pedestrian is at fault, you can get the help you need from him and his firm. When not working, he enjoys playing golf and traveling with his family.