In an ideal world, there would never be any accidents.
rnDrivers would be extra-vigilant while operating their cars, pedestrians would use properly marked crosswalks and everybody would be following the rules.
rnEverybody would be
reasonable.
Unfortunately, as earthlings, we make mistakes, we get distracted and we crash. So the justice system will compare what we have done with what a reasonable person would have done in the same situation. The farther you had been from acting
reasonably, the more penalty you will have to face.
As a driver, you have a greater potential to cause harm to a pedestrian than a pedestrian has to you and that is why drivers are expected to be more watchful. When an accident occurs, the driver has less wiggle room to defend his reasonableness against that of the pedestrian. So if you accidentally hit a pedestrian, then chances are, you will definitely be held accountable for damages.
rnThis happens almost all the time. Rare is the case in which the pedestrian was held liable, and rarer still is a case in which the pedestrian was held entirely responsible, even when he or she was jaywalking.
Comparative negligence
A driver’s (or his or her lawyer’s) best option is usually to explore the concept of comparative and contributory negligence. According to the comparative negligence theory, a pedestrian can also be held liable if he or she was partly at fault. If found so, the amount that the driver would have to pay in damages would reduce. If both parties cannot reach a settlement agreement, then a judge (or jury) would listen to both sides in the courtroom and determine:
*Who was more liable than the other (that person then pays the other)
*The exact percentage of liability each party holds
*The amount that has to be paid
For example, if a driver hits a jaywalking pedestrian, a jury might decide that the pedestrian was 30% at fault for the accident, which means that the driver was 70% responsible. So, after presenting a verdict compensation that would offset all of the pedestrian’s losses, the driver would only have to pay 70% of that amount to the pedestrian.
If the pedestrian is found to be 50% or more at fault, then he or she cannot collect any damages. Most states follow this rule, called the modified comparative negligence theory. Finding pedestrians 50% or more guilty for the accident is beyond rare, and beyond the driver’s hope to escape all liability.
rnAccording to the
pure comparative negligence theory, the injured party (usually, of course, the pedestrian) can recover damages even if he or she was 99% at fault, but the final settlement he or she recovers would have been reduced by that much.
Simply put, if the total extent of the pedestrian’s damages equaled $1,000 and he or she was 99% at fault, then the driver would only have to pay $10. Thirteen states follow this rule, including Washington, California, Arizona, Florida and New York.
Contributory negligence
However, if a driver wants to get away without paying any damages to the jaywalking pedestrian at all, he or she might be able to do so if the accident occurred in the right place.
This is where the concept of contributory negligence comes in. According to this theory, if the pedestrian was even 1% at fault, which he or she often is if there is evidence of jaywalking, then no damages can be collected. Basically, it’s an all-or-nothing system.
So if the driver was in any one of these states when he or she hit a jaywalking pedestrian:
*Alabama
*Maryland
*North Carolina
*Virginia
Then he or she may not have to pay compensation.
rnPure contributory negligence theory assumes that the accident would not have occurred if the pedestrian followed the rules and had kept a reasonable lookout for oncoming traffic. In its eyes, the accident could have been prevented if not for the pedestrian’s negligence toward traffic rules, even if it was determined to be only, say, 10%. Unless the driver intentionally hit the jaywalking pedestrian or committed a hit-and-run felony, the pedestrian (or the family) is denied all compensation.
This argument is a negligent (not criminal) driver’s ticket to civil liability freedom in the four states mentioned above, and an opportunity to reduce the final payout in the other 46 states. Certainly, the idea of contributory negligence may seem overly unfair to the pedestrian but is perfectly just to the driver. It all depends on which side of the tort you’re on.
Determining liability and final compensation
In the driver’s defense, a pedestrian who was jaywalking has certainly broken some traffic laws and may be all the more liable if he or she was doing so too negligently. For example, while jaywalking, if the pedestrian:
*Was on his phone or distracted by something else
*Had suddenly jumped into the car’s way, leaving no time for the driver to react
*Was running onto the road without looking
*Was intoxicated or high
*Could have used the crosswalk that was only a few feet away
*Was on a major highway or on a street that expressly banned pedestrians
*Was on the road in a poorly lit or foggy area
Then recovering a full settlement would become all the more difficult for the injured pedestrian. This also extends to pedestrians who did use the crosswalk, but against the signal of the traffic light.
On the other hand, a jaywalking pedestrian’s lawsuit recovery would increase if the driver:
*Was distracted by a phone or other object
*Was underage, in which case the parents would be made to pay damages
*Was speeding above the limit, or over a reasonable speed depending on the time and place (consider a turn made at 15mph in a snowy area at nighttime)
*Saw the pedestrian and had ample time to avoid an accident
*Broke traffic rules, such as by making illegal left turns or running a red light
*Hit the passenger in broad daylight or in a well-lit area
*Was driving under the influence (likely to attract criminal charges)
*Hit the pedestrian and ran (more likely to attract criminal charges)
*Intentionally hit the pedestrian (will most certainly attract criminal charges)
rnCriminal charges could result in an immovable mark on the record, citations, fines and time spent in a correctional facility depending on certain factors. With jaywalking, penalties depend on the state and county and usually attract fines around a hundred dollars. Unless the jaywalker was excessively reckless in their behavior, he or she is not usually detained. While the focus here is on liability in civil court and not a criminal one, we recommend that it is always best to stay alert, law-abiding and as
reasonable as possible to avoid injury, penalty and loss.
If you were a pedestrian and you have been injured by a driver in an auto accident, you can connect with an
auto accident attorney to discuss your compensation, even if you were jaywalking. We provide consultations for free and are always willing to help you out.
If you have any other questions or thoughts about the duty of care on the roads, comparative and contributory negligence or determining liability and settlement amounts, do leave us a comment below. We would be glad to discuss it.