While the driver is often found to be at fault in traffic accidents that involve a driver and a pedestrian, this isn’t always the case. Even if the pedestrian is in or near a crosswalk, there could still be situations where the pedestrian is the one who is at fault for the accident.
The law requires that both drivers and pedestrians exercise care to avoid accidents. Since a driver is operating a large vehicle and a pedestrian is not, he is typically expected to use more care than a pedestrian would.
In a traffic accident that involves a driver and a pedestrian, the determination of who was at fault comes down to who acted negligently. There are three possible outcomes for this type of accident: the driver was entirely at fault, the pedestrian was entirely at fault, or the driver and the pedestrian were both at fault. Here are examples of each type of situation to demonstrate the difference:
A pedestrian has a walk signal, so he begins to cross the street. As he steps onto the crosswalk, a driver who was going to make a right turn on the red goes into the crosswalk and hits the pedestrian. The driver would be 100 percent at fault here, because he didn’t use the proper amount of car when approaching a red light.
Let’s say that there is a crosswalk without a traffic light, so drivers only need to yield when pedestrians are crossing the street. As a driver is about to pass through the crosswalk, a pedestrian who was hidden behind a parked car runs out in front of him. The driver hits the pedestrian. Although the pedestrian had the right to cross the street, he made it impossible for the driver to yield, because he couldn’t be seen until the moment he ran out into the street. In this case, it’s likely that the pedestrian would be found 100 percent at fault for the accident, which means he would need to pay for damages to the driver’s car. If instead of hitting the pedestrian, the driver swerved and clipped a car in the next lane, the pedestrian could be found at fault for that accident.
In the scenario above, if the driver was going 20 miles per hour above the speed limit, then it’s likely that both the driver and the pedestrian would be at fault. While the pedestrian still made it impossible for the driver to avoid an accident, the driver may have been able to avoid the accident if he had been going the speed limit, therefore both parties share some degree of the blame.
It’s still the driver’s responsibility to avoid pedestrians whenever possible, even when the pedestrian is being negligent. This means that if the pedestrian is jaywalking, either by crossing the street without using a crosswalk or using a crosswalk when he doesn’t have a walk signal, the driver still needs to attempt to avoid the pedestrian. If he doesn’t, it’s likely that the driver and the pedestrian will both be found at fault.
The amount each party was at fault can be significant depending on the state’s fault laws. If it’s a state with pure comparative negligence, then both party’s recoverable damages are reduced by the amount that they’re considered to be at fault. For example, if the pedestrian has damages of $15,000 but he’s found to be 60 percent at fault for the accident, he would only be able to recover $6,000 in damages. If the pedestrian lives in a state that uses proportional contributory negligence, then he won’t be able to recover anything, because in those states you must be under 50 or 51 percent negligent to recover any damages.
Whether you were the driver or the pedestrian in a traffic accident, your best move is to consult with an attorney who can advise you on your situation and represent you in your case. Your attorney will be able to explain the fault laws in your state, make sure that you don’t do or say anything that could weaken your claim, and give you the best chance of recovering damages.