Determining Fault In An Auto-Pedestrian Accident

By CarsFellow 4 Min Read

Many people are under the assumption that if an automobile hits a pedestrian, the driver of the automobile is automatically at fault. This assumption comes from the disparity in injuries that usually exists between the driver and the pedestrian, as the person not protected by a huge hunk of metal tends to fare worse. However, just because a pedestrian is in a more vulnerable position, it doesn’t always mean the driver is at fault. A car accident attorney can help assess fault in a specific case, but here are some pointers on determining fault in a pedestrian accident.

Duty Of Care

No matter if you’re driving a motor vehicle or walking along a sidewalk, the law makes it clear that you have a duty of care, which means you are expected to exercise a reasonable amount of care under a given set of circumstances. For example, pedestrians and drivers are both expected to follow the rules of the road when using streets, sidewalks, crosswalks, and other public walkways and driving areas.

In other words, a pedestrian can’t cross the street if there is no crosswalk. If a driver were to hit a pedestrian that crosses outside of the crosswalk, the driver may not be at fault. The pedestrian has a duty of care to use crosswalks to cross streets and if they don’t do that and get hit, they are negligent, not the driver.

Of course, the driver must do everything they can to avoid hitting a pedestrian, even if they walk out into the middle of the street from between cars instead of in a crosswalk. They can’t just plow into them because the pedestrian made a bad choice. The driver still has a duty of care to attempt to stop before colliding with the pedestrian.

Shared Fault

In many pedestrian accidents, insurance companies, judges, and juries will apply what is known as shared fault. This means that both parties were at fault to some degree and the evidence will determine who is more at fault to dictate which party has to pay compensation. Whenever there are two parties involved in an accident, fault can be assigned up to 100%.

As an illustration, if a pedestrian crosses a street outside of a crosswalk and is hit by a car that is going 45 miles per hour in a 25-mile-per-hour zone, both parties are at fault to some degree. In a case like this, in states that apply contributory negligence, the defendant will owe nothing to the plaintiff, even if the defendant was partially or even mostly negligent.

In states that apply comparative negligence, damages will be determined based on the percentage of fault each party has. In the example above, the pedestrian might be 60% at fault, while the driver is 40% at fault. The amount of compensation the plaintiff will receive will be reduced somewhat, but not entirely eliminated.


Whether you are the driver or a pedestrian in a pedestrian accident, it’s imperative that you hire a car accident attorney to help you navigate the complicated landscape of fault. Don’t just assume that the pedestrian has all the rights because you could end up paying significantly more than you should.

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