Who is at fault when a pedestrian is hit by a car seems like a simple question to answer. In fact, most people think the pedestrian has the right of way. So, it must always be the driver’s fault. Many times this is true. But not all the time. There are times when the pedestrian does not have the right of way or did something wrong and the driver did everything right. This guide will help you make those determinations.
DETERMINING FAULT WHEN A PEDESTRIAN IS HIT BY A CAR
Determining who is at fault when a pedestrian is hit by a car requires looking at the actions of the car driver and looking at the actions of the pedestrian.
What was the Driver Doing?
First you have to look at what the driver was doing. Things to look for are:
- Was the driver legally driving where they were allowed to drive?
- Was the driver going a safe speed for the circumstances?
- Was the driver paying attention to the roadway?
If the driver was doing all of these things, the driver will have very little if any fault for causing the accident. If on the other hand, the driver was not doing one or more of these things, the driver will have at least some fault for hitting the pedestrian. If the pedestrian was doing nothing wrong then the car driver will have all the fault for the accident.
What was the Pedestrian Doing?
Next you have to look at what the pedestrian was doing. The questions to ask are:
- Was the pedestrian where they were legally allowed to be? This is what is commonly referred to as the pedestrian having the right of way.
- Was the pedestrian doing what they were legally allowed to be doing?
If the pedestrian had the right of way and they were doing what they legally were allowed to be doing, they will very rarely if ever have any fault for getting hit by a car. If, on the other hand, the pedestrian did not have the right of way, or was not doing what they were supposed to be doing, the pedestrian will usually have some if not all of the fault for the accident.
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COMMON WAYS A CAR DRIVER MAY BE AT FAULT FOR HITTING A PEDESTRIAN
Car drivers have a duty to act reasonably and carefully under the circumstances. This means they must pay attention to the road so they can timely react to pedestrian movement. This is often referred to as defensive driving. Car drivers must also drive a safe speed given the circumstances. This means they must be driving a speed that will give them time to stop in locations where there are usually pedestrians hanging out. The most common ways car drivers are at fault when a car hits a pedestrian are:
- Speeding through a neighborhood
- Failing to yield to a pedestrian
- Failing to look for kids playing in the street
- Failing to look for pedestrians standing on the corner at intersections
- Failing to see a pedestrian walking in a crosswalk
- Failing to recognize a special pedestrian crossing area not at an intersection
- Failing to give a bicycle the right of way
- Drunk driving
COMMON WAYS A PEDESTRIAN MAY BE AT FAULT
When a pedestrian does not have the right of way they are usually jaywalking. Because jaywalkers do not have the right of way, they usually have some or all of the fault when they are hit by a car. Jaywalking occurs when a person walks in the street in a place they are not supposed to be walking without being concerned about approaching traffic. Common types of jaywalking include:
- Crossing in the middle of the street
- Walking outside a crosswalk
There are also common illegal or improper activities a pedestrian may engage in that may give them responsibility in an accident. The most common are:
- Walking in a crosswalk when the do not walk command is flashing
- Entering a roadway, highway, or street while intoxicated, drunk, or on drugs
- Walking in prohibited areas along bridges, causeways, or other roads
- Wearing dark clothing at night
- Failing to look before crossing the road
- Looking at a mobile device while walking
- Chasing after a ball or other object that fell into the street
WHEN BOTH THE CAR AND THE PEDESTRIAN ARE AT FAULT
Sometimes both the car and the pedestrian will have fault. For example, lets say a car is speeding in a neighborhood and a pedestrian is jaywalking. The car driver is driving too fast for the road conditions. Had the car driver been driving slower, they could have stopped the car before hitting the pedestrian. But the pedestrian was walking in a place that a driver would not expect. So, the pedestrian will have some fault too.
Some people may think if a pedestrian is intoxicated the car driver cannot be at fault. But that is not necessarily true. Certainly the pedestrian will have fault if they are high on alcohol or drugs and that causes them to step into traffic. But the driver can still have some fault if the driver was speeding or not paying attention.
CAN A PEDESTRIAN SUE IF HIT BY A CAR?
A pedestrian can sue the if they are hit by a car. How the lawsuit will work out will depend on who is at fault and the laws of the state where the car accident happened.
States with Comparative Negligence
In most states, if a case is heard by a jury, the jury will be allowed to assign responsibility to both the car and the pedestrian. The person bringing the lawsuit, the plaintiff, will have their damages reduced by their percentage of fault. Insurance companies will do the same thing.
States with Contributory negligence
In a few states, if a jury assigns a certain percentage of fault to the person bringing the lawsuit, the plaintiff, will get nothing. The percentage required to prevent the plaintiff from getting anything is different in each of these states. The most common percentage is 50%. In a handful of states, the percentage is only 1%. In those states if the plaintiff has any fault at all, the plaintiff recovers nothing.
WHEN A PEDESTRIAN IS HIT BY A CAR CAN THEY GET A SETTLEMENT?
If a pedestrian is hit by a car and the car has fault for the accident, a settlement is definitely possible. But the amount of the settlement will depend on many different factors. As a result, it is really not possible to compare two different cases and expect them to settle for the same amount.
Common Pedestrian Injuries
The type of injuries a pedestrian has will greatly affect the settlement amount. When a pedestrian has minor injuries that completely heal, if there is a settlement it will be quite small. Overall, the more severe the injuries, the larger the settlement. The most common pedestrian injuries are:
- Death (In 2017 there were 5,977 pedestrians killed in car crashes)
- Broken arms, legs, hips, ankles, and pelvis
- Traumatic brain injuries (TBI) and concussion
- Spinal cord injuries
- Bruises, cuts, and scrapes to hands, arms, legs, face and head
Factors that Influence Settlement Amount
Of course, the severity of the injuries greatly affects the settlement amount. But there are plenty of other important factors as well. The most common things that will influence the settlement amount are:
- The severity of the injuries
- The quality of the personal injury lawyer you hire
- The competence of the insurance adjuster
- The type of medical care and the amount of the medical bills
- How much time was missed from work and how much work you will miss in the future
- How the injuries affect your daily life
- Whether you will have a full recovery
- Whether the car driver was clearly at fault