I hit a pedestrian, but it’s not my fault! What should I do?
In the United States, it is critical to know that just because you hit a pedestrian or a jaywalker while driving a car does not mean the pedestrian is absolved of all fault. You must know your rights and consult with an attorney immediately in order to best evaluate your case.
What is jaywalking?
Jaywalking is the act of crossing a street when not permitted or outside of designated areas. An example would be crossing outside of a crosswalk or when the crosswalk sign is flashing “Don’t Walk".
Jaywalking is a citable violation of traffic laws, even though you are walking and not in a car or other vehicle. Jaywalking is typically a misdemeanor punishable only with a fine.
If I hit a jaywalker with my car, am I at fault for their injuries?
Not always. Pedestrian accidents can become complicated quickly, and do not always result in the pedestrian winning.
Jaywalking is a large factor which may help you argue that you are not at fault for colliding with the pedestrian. If the pedestrian can be proven to have been jaywalking at the time of the accident, they will share fault for causing the accident.
What else can make pedestrians at fault for a car accident?
If the pedestrian is wearing all black clothing at night and jaywalked suddenly in front of the car, the pedestrian is obviously at fault.
However, many cases may not be so open-and-shut. For example, what if the person jaywalked in broad daylight or wore bright clothing? What if the driver wasn’t speeding, but still hit the jaywalker? In these situations, determining fault becomes more tricky, and varies from state to state, depending on their laws for shared fault, also known as:
Comparative Fault
Many states have comparative fault laws, also known as comparative negligence, and some states even modify these laws.
A pure comparative fault state will hold both the defendant(s) and plaintiff(s) liable for a percentage of the fault, and reduce what monetary damages are awarded to the plaintiff.
For example, if the plaintiff is 40% at fault for the accident and resulting injuries while the defendant was ruled 60% at fault, the plaintiff may receive 60% of the total damages that occurred rather than 100%.
California, New York, New Mexico, Louisiana, and other states are pure comparative fault states.
For modified comparative fault state laws, depending on the state, the plaintiff must not be determined to be more than 50% or 51% at fault for the accident in order to collect any damages.
Hawaii, Florida, Illinois, Colorado, and other states are modified comparative fault states.
Furthermore, comparative fault is not to be confused with contributory negligence, where if the plaintiff is determined to have contributed in any way to the accident and therefore share any percentage of fault, they cannot collect any damages for their injuries. Only the states of Alabama, Maryland, Virginia, North Carolina, and Washington D.C. are currently contributory negligence states, though Washington D.C. applies a 51% bar modified comparative fault law for pedestrian and bicycle-related accidents.
Can I go to jail for hitting a jaywalker?
An accident between a pedestrian and a vehicle is usually treated the same as a two-vehicle accident. The police will take down all parties’ personal information and begin an accident report, allowing the involved parties to go on their way afterward.
However, in many instances, hitting a pedestrian may cause you to go to jail, even if the pedestrian was jaywalking, such as:
Hit-and-run. This is a felony charge with potential prison sentence, so it’s best to ensure that you do not fail to stop at the scene of the accident if you accidentally hit a pedestrian with your car.
DUI, DWI, or OUI. If you are a driver who is Driving Under the Influence, Driving While Intoxicated, or Operating under the Influence, you will be seen as causing extenuating circumstances which prevent you from being in complete control of your vehicle, reaction time, and actions as a driver. This may result in higher fines, possible jail time, and harsher driver’s license penalties.
Vehicular Manslaughter (Involuntary Manslaughter). If the driver was driving recklessly, such as by speeding or committing DUI, any death resulting from the accident may result in criminal charges, even if the pedestrian was jaywalking at the time.
Are there different traffic laws for pedestrians than car drivers?
No.
Ultimately, anyone using the road must follow the traffic laws, whether in a car or on foot. Both drivers and pedestrians must follow the traffic signals, signage, and laws to ensure their own safety as well as others; if the pedestrian fails to do so and it causes an accident, then they will most likely be found at least partially at fault for the accident.
That said, drivers are required to do everything possible to avoid an accident with a pedestrian, even someone who is illegally crossing and not following the traffic laws. Drivers will be considered more at fault in a jaywalking-related collision if there was an opportunity to avoid the accident which was not taken. As such, drivers must avoid doing the following:
Speeding
Keeping their eyes off the road
Failing to yield
Distracted driving
Can a pedestrian still sue me if they were jaywalking?
Yes.
A pedestrian may still choose to file a civil lawsuit for personal injury against a driver, even if they were caught jaywalking. Jaywalking does not automatically prove the pedestrian is entirely at fault for causing the accident.
In fact, in states with comparative fault laws, you may still end up paying millions of dollars if the pedestrian’s injuries were severe enough, even if they share part of the fault.
For example, a pedestrian who is 99% at fault for causing the accident, but suffered 100 million dollars worth of damages and injuries as a result of the accident (very plausible if the pedestrian were to suffer disability, lifelong pain, paralysis, loss of ability to work, etc.) would still be awarded 1 million dollars in damages that you, as the defendant, would be liable to pay.
This is why it is important to contact an attorney as soon as possible after any kind of accident and have skilled legal representation to help evaluate and defend your rights.
