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.

The statistics on traffic accidents between cars and pedestrians can be pretty eye-opening. In 2008 alone, according to the National Highway Traffic Safety Administration (NHTSA):

  • 69,000 pedestrians were injured in traffic accidents
  • 4,378 pedestrians died in traffic accidents
  • Children age 15 and younger represented 7% of fatalities and 22% of injuries in pedestrian-car accidents, and
  • Adults age 65 and older accounted for 18% of fatalities and 10% of injuries in pedestrian-car accidents

Contributing Factors in Auto vs. Pedestrian Accidents

Time of Day and Day of Week. NHTSA statistics show that time of day and day of week are important factors in auto vs. pedestrian accidents. In 2008, 38% of pedestrian vs. car fatalities involving drivers 16 years of age or younger occurred between 3 p.m. and 7 p.m. Meanwhile, 48% of all pedestrian car fatalities occurred on Friday, Saturday, and Sunday.

Alcohol. The consumption of alcohol and being under the influence -- on the part of either the pedestrian or the driver -- was reported in 48% of traffic accidents that resulted in pedestrian fatalities in 2008. Interestingly, 36% of pedestrians involved in auto vs. pedestrian accidents were over the legal limit, while only 13% of drivers were over the legal limit.

Determining Fault

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. That's not true. 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 their action (or inaction) causes a traffic accident.

A pedestrian may be considered negligent (and therefore at fault) if any of the following actions cause or contribute to a traffic accident:

  • Jaywalking or crossing outside of the cross walk
  • Crossing against traffic control signals
  • Crossing freeways/highways and other road ways without traffic controls, and
  • In a non-emergency situation, walking along freeways, highways, bridges, and other areas where pedestrian access is prohibited by law.

What if both the pedestrian and the driver are at fault? State laws govern the apportionment of fault for a traffic accident (deciding who was negligent, and to what degree) and how that impacts an injury claim.

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 a minor one).

Other states follow a comparative negligence rule. In those states, the damages the pedestrian may recover will be reduced by a percentage that equals the pedestrian's share of fault. For example, a pedestrian who is 40% at fault for an accident will only be compensated for 60% of their damages). That's the rule in states that follow a "pure" comparative negligence rule. In "modified" comparative negligence states, a pedestrian can only recover compensation from an at-fault driver if the pedestrian bore less than 50 percent of the blame.

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