I hit a pedestrian with my car outside of a crosswalk. Am I still at fault?

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Question:

I hit a pedestrian with my car outside of a crosswalk. Am I still at fault?

Answer:

You may have heard that pedestrians always have the right of way, and that a motorist who hits a pedestrian will always be at fault for a car accident.  It’s a widely-recited rule, but it’s not always accurate. There are a few key issues that typically dictate liability in injury claims brought after a car-pedestrian accident, and there are instances in which the driver or the pedestrian (or both) will be deemed at fault for the accident.  

First, where was the pedestrian?  The general rule is that if the pedestrian was in a legal crosswalk, then a driver must yield the right of way.  The rub here is that a legal crosswalk is not necessarily one that is marked with paint and signs.  While every state has slightly different laws, the general rule is that a pedestrian has the right of way even in an unmarked crosswalk, which could be an intersection between streets, or even where an alley intersects a much larger street

But what if the pedestrian just runs out into the road, not at a legal crosswalk? In the eyes of the law, both drivers and pedestrians have a duty to use “reasonable care” on the roads and highways.  When the failure to exercise the appropriate amount of care causes a traffic accident, the driver or the pedestrian will be deemed “negligent.”  

A pedestrian may be considered negligent (and therefore at fault) if any of the following causes or contributes to an accident: 1) jaywalking, 2) crossing against traffic lights (walking when it says “Don’t Walk”), 3) walking where pedestrian access is prohibited by law, i.e. on a bridge or highway with no shoulder. (Learn more: Can a Pedestrian Be at Fault for an Accident?)

What if both the pedestrian and the driver are at fault? State laws on shared fault will determine the effect on an injury claim after a traffic accident. For example, many states follow some variation of the comparative negligence rule, which reduces an injury claimant’s damages award by a percentage that is equal to his or her share of fault for the accident.  So, if a pedestrian is deemed 20 percent to blame for causing a traffic accident in a “pure comparative negligence” state, and her damages add up to $10,000, the driver (who is 80 percent to blame) will only be on the legal hook for $8,000. (For details, see Comparative Negligence in a Car Accident Case.)  

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