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. Florida Car Accident Injury Lawyer

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

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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 at the Time of the Accident?

To determine who is legally liable in a pedestrian accident, 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 at 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. If the driver was not doing one or more of these things, the driver will have at least some fault. If the pedestrian was doing nothing wrong, then the car driver will have all the fault for the accident.

What Was the Pedestrian Doing at the Time of the Accident?

Next, you have to look at what the pedestrian was doing. The questions your proactive injury attorney will ask to prove fault are:

  • Did the pedestrian have the right of way?
  • Was the pedestrian breaking any laws?

If the pedestrian had the right of way and their actions didn’t break any laws, they will very rarely, if ever, have any fault for getting hit by a car. If they did, the pedestrian will usually have some if not all of the fault for the accident.

How a Driver May Be at Fault for Hitting a Pedestrian

Car drivers have a duty to act reasonably and carefully, and they must also drive at a safe speed. This means they must have time to stop for pedestrians. The most common ways car drivers fail to do this 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

In any of these scenarios, the driver will be at fault for hitting a pedestrian with their car. In certain circumstances, they may share liability with the pedestrian or another party.

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 and Fault

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

When a pedestrian jaywalks, they can be at fault in an accident because the driver did not anticipate that a person might be in that road at that location, as it isn’t permitted by law.

Other Ways Pedestrians Can Be at Fault

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, a car is speeding and a pedestrian is jaywalking and they collide. Had the driver been slower, they could have stopped the car before the impact. However, the pedestrian was walking in a place that a driver would not expect. They 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, pedestrians will have fault if they are high on alcohol or drugs and that causes them to step into traffic. However, the driver can still have some fault if the driver was speeding or not paying attention.

Can a Pedestrian Sue if They Are Hit by a Car?

A pedestrian can sue 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 Laws

In most states, if a case is heard by a jury, they will be allowed to assign responsibility to both the car and the pedestrian. The plaintiff will have their damages reduced by their percentage of fault. Insurance companies will do the same thing.

States with Contributory Negligence Laws

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. In some, it is 50%. In a handful, the percentage is only 1%. In those states, if the plaintiff has any fault at all, they recover nothing.

Can a Pedestrian Get a Settlement in an Accident?

If a pedestrian is hit by a car and the car has fault for the accident, a settlement is definitely possible. However, 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 and How They Affect Your Settlement

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 pedestrian 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

What Damages Can You Sue for in a Pedestrian Accident?

Whether you are the driver or the pedestrian, there are certain damages you will be able to claim if the other party is found to be at fault in your accident.

  • Medical bills from any hospitalizations or treatments
  • The cost of any treatments you’ll need in the future
  • Reimbursement for any wages you missed while you were injured
  • Reimbursement of any wages you will miss in the future
  • The cost of emergency transportation
  • The cost of physical therapy and other rehabilitation
  • The cost of disabled accessibility modifications to your home or vehicle

A pedestrian who is found to be at fault in a collision with a car may also be responsible for covering damages related to the repair or replacement of the vehicle.

How Long Do You Have to File a Claim After a Pedestrian Accident?

The statute of limitations laws are set by states, so you need to file before this time limit is up in the state where your accident took place. According to Florida Statutes §95.11(3)(a), the statute of limitations in this state is two years from the date of the accident. This, however, does have exceptions depending on the age of the victim and other circumstances.

Do I Need a Personal Injury Lawyer for a Pedestrian Accident?

Whether you are the driver or the pedestrian, if you’ve been injured it’s a good idea to seek out the help of a Tampa pedestrian accident lawyer. An attorney can prove your percentage of fault and negotiate the best possible settlement. If the fault isn’t clear or you want to contest fault, you must seek out the help of a legal professional as soon as possible.

Florida injury lawyer Scott Distasio If you have been injured in a motor vehicle accident, reach out to one of our dedicated Tampa car accident lawyers near you now for a free consultation.


Our main office is here in Downtown Tampa, Florida in the Channelside neighborhood. Office in Wesley Chapel and Largo are available by appointment only.

Distasio Law Firm