Is the Driver Always at Fault in a Pedestrian vs. Car Accident?

In any accident involving a pedestrian, the driver always takes the blame. After all, people will naturally pity the person who looks more disadvantaged. In this case, the pedestrian.

But are drivers always at fault in accidents that involve pedestrians? 

A driver is not always at fault in a pedestrian vs. car accident. For instance, if a pedestrian crosses the road in the middle of a highway and gets hit, the driver will not be at fault. However, if a reckless driver hits a pedestrian at a crosswalk, the motorist will be clearly at fault.

This article clarifies circumstances where the driver or the pedestrian may be at fault in a car accident.

When Is the Driver At-fault?

The first thing to consider when determining fault is to look at what the driver was doing at the time of the accident. There are three questions to consider here:

  • Was the driver legally allowed to drive (the right age)?
  • Was the driver within the acceptable speed limit?
  • Was the driver paying attention to the road?

Even with all the positive answers above, the driver must still exercise a duty of care when on the road. Many drivers breach the duty of care either knowingly or unknowingly and cause pedestrian accidents. Some of the circumstances where a driver will be considered to have acted negligently include:

  • Speeding
  • Distracted driving
  • Drunk driving
  • Failing to yield to pedestrians.
  • Running lights
  • Improper turns

If any or some of these factors resulted in an accident, the driver will be at fault. The pedestrian can pursue a personal injury claim and get the driver’s insurance company to compensate them. With a clear fault, the insurance company won’t put up much of a fight.

When Is the Pedestrian At-fault?

Even though pedestrians have the “right of way,” they sometimes act negligently, causing an accident. When determining whether the pedestrian was at fault, two questions pop up:

  • Did the pedestrian have “right of way”?
  • Was the pedestrian breaking any law at the time of the accident?

If the pedestrian didn’t have the right of way or was breaking any law during the accident, they’ll be at fault or partially at fault.

One of the common ways a pedestrian may break the law and end up causing an accident is when they’re jaywalking. This involves either walking outside crosswalks or crossing the middle of the street.

Other ways a pedestrian may be considered negligent in an accident include:

  • Crossing when do not walk light is flushing.
  • Walking in prohibited areas
  • Wearing dark clothing at night
  • Walking while distracted by mobile devices.
  • Chasing after an object on the road
  • Walking on the road while intoxicated
  • Failing to look at the road before crossing.
  • Entering the road unexpectedly

While many states don’t consider jaywalking an offense, pedestrians must still yield to traffic. For example, if a pedestrian suddenly enters the road without looking at the traffic, they leave the driver with little or no chance to react. 

When they get hit, they’ll still be at fault even though they’ll be the ones injured.

When pedestrians are at fault in an accident, they won’t be compensated for their injuries. They’ll have to foot the bills for their medical treatment and might have to compensate the driver for the damage to the car.

When Both the Pedestrian and the Driver Is At-fault

There are several circumstances when both the driver and the pedestrian might be at fault. For example, just because the pedestrian was distracted and texting while walking doesn’t mean the driver wasn’t at fault. 

If the driver was also speeding at the time, it means they couldn’t have stopped on time to prevent the accident.

So, what if both the pedestrian and the driver are to blame for the accident? The answer to this question will depend on the state where the accident took place. Does your state follow the comparative negligence or contributory negligence rule?

Contributory Negligence

In a state that follows contributory negligence, the plaintiff will not get any compensation if they share the fault. 

Even one percent of fault on the side of pedestrians is enough to deny them the chance to get their personal injury compensation. 

This rule is considered harsh to the plaintiff. Thankfully, only four states follow it: Alabama, Virginia, North Carolina, and Maryland.

Comparative Negligence

In a state that follows comparative negligence, the fault is allocated between all the parties involved. If the defendant is 70% to blame for the accident, the fault will be calculated based on that number. 

Comparative negligence takes two forms; pure and modified comparative negligence. 

  • Pure contributory negligence: In pure comparative negligence, the damage will be split based on the percentage of fault. If a pedestrian is 20% to blame for the fault and the compensation was supposed to be $10,000, they’ll only get $8,000.
  • Modified contributory negligence: In modified comparative negligence, the liability is split based on a certain percentage of fault, but only up to a certain level. If the plaintiff exceeds the set level, they won’t get any compensation. For example, if the level is set at 50% and the pedestrian is 60% to blame for the accident, they’ll not get any compensation.


Pedestrian accidents are common and cause a lot of pain, losses, and property damage. While pedestrians suffer the most in such accidents, sometimes they are to blame. For example, crossing the road while using your phone is completely against the law, and you’ll be at fault when a car hits you.

However, in cases where the driver is to blame, pedestrians are entitled to compensation for their injuries and losses. Getting the help of an attorney can help you figure out who is at fault and what damages you need to pursue when filing personal injury compensation.

So, whether you were the driver or the pedestrian in a car accident, you must understand your rights. Don’t allow yourself to take the blame if someone else was negligent on the road.

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