Can a Pedestrian Be At Fault for a Car-Pedestrian Accident?

Pedestrians usually have the right of way, but in some situations they may shoulder some or all of the blame.

Updated by Stacy Barrett, Attorney
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  • The statistics on pedestrian-car accidents are eye-opening. In 2019 alone, according to the National Highway Traffic Safety Administration (NHTSA):

    • 76,000 pedestrians were injured in traffic accidents
    • 6,205 pedestrians died in traffic accidents
    • children age 14 and younger represented 17% of fatalities and 4% of injuries in pedestrian-car accidents, and
    • adults age 65 and older accounted for 18% of fatalities and 3% of injuries in pedestrian-car accidents.

    Contributing Factors in Car vs. Pedestrian Accidents

    Time of Day and Day of Week. NHTSA statistics show that time of day and day of the week are important factors in pedestrian-car accidents. In 2019, 26% of pedestrian fatalities occurred between 6 and 8:59 p.m. The highest number of pedestrian fatalities occur on weekend nights (Friday, Saturday, and Sunday) between 6 and 11:59 p.m.

    Alcohol. Alcohol consumption—by the driver or pedestrian—was a factor in 46% of traffic accidents that resulted in pedestrian fatalities in 2019. An estimated 32% of fatal accidents involved a pedestrian with a blood alcohol level (BAC) of .08 or higher. Only 13% involved a driver with a BAC of .08 or higher. (It is illegal in every state to drive with a BAC of .08 or higher.)

    Can a Pedestrians Be at Fault for an Accident?

    Most people think that because "pedestrians have the right of way," it follows that pedestrians are never at fault for traffic accidents. That's not true. Both drivers and pedestrians have a duty to exercise reasonable care on the roads and highways. Drivers and pedestrians who violate ("breach") this duty of care are negligent if their actions (or inactions) cause a car accident.

    A pedestrian might be negligent and legally responsible (liable) for an accident if the pedestrian does one or more of the following:

    • crosses a street outside of a crosswalk (jaywalks)
    • doesn't follow a traffic signal
    • walks on a road where pedestrians aren't allowed to walk, or
    • walks while under the influence of alcohol or drugs.

    Shared Blame in Pedestrian-Car Accidents

    What if both the pedestrian and the driver are at fault? Different states handle shared blame situations differently.

    Some states follow a contributory negligence rule, which prevents a pedestrian from recovering damages from a driver if the pedestrian shares any amount of blame for the accident (even a minimal amount).

    Other states follow some version of a comparative negligence rule. In "pure comparative negligence" states, pedestrians can recover damages if they are partially at fault for an accident, but their compensation is reduced by their share of fault. (For example, a pedestrian who is 40% at fault for an accident will only be compensated for 60% of their damages). In "modified comparative negligence" states, injured pedestrians can recover damages if their percentage of fault was below a certain amount (usually 50% or 51%).

    Talk to a Pedestrian Accident Lawyer

    Accidents involving cars and pedestrians are scary. Pedestrians are often seriously injured and their damages can add up quickly. If you've been in a pedestrian-car accident, talk to a lawyer. A lawyer can answer your questions, help you figure out who was at fault for the accident, and guide you through your legal options.

    Learn more about hiring a car accident lawyer. You can also fill out the form at the top or bottom of this page to connect with an auto accident lawyer for free.

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