Do I Have a Case If I Was Hit By a Car While Crossing Outside of a Crosswalk?

LAW BLOG  •

May 30, 2016

If you have been hit by a vehicle while crossing a roadway outside of a marked crosswalk (commonly called “jaywalking”), you may believe that you do not have the right to pursue compensation for your injuries. Although Texas law requires jaywalkers to yield the right-of-way to vehicles, drivers can still be held responsible for causing a pedestrian’s injury or death.

The Texas Transportation Code mandates that drivers must use reasonable care to avoid hitting pedestrians in any roadway. While a driver may argue that the pedestrian is at fault for breaking the law, the reality is that both parties likely hold some responsibility, making for a complicated case.

The Definition of Negligence

Individuals have a duty to avoid behaving in a manner that will cause harm to others. Those who fail to uphold this duty may be considered negligent. Negligence is the basis for many personal injury cases, as it helps determine who is at fault for an accident and to what degree a person can be held responsible.

Proving Negligence

In personal injury cases, the plaintiff must prove the following four elements to demonstrate that the defendant is guilty of negligence:

  • Duty of care. In the relevant situation, the defendant owed a duty of care to the plaintiff, meaning the defendant was obligated to behave in a way that would not reasonably cause harm to the plaintiff. For example, drivers have a duty of care to pay attention to the road and not allow themselves to become distracted.
  • Breach of duty. A breach occurs when a person fails to fulfill the duty of care obligation. In the previous example, a driver who texts while driving has breached his or her duty of care to pay attention while driving.
  • Cause. The plaintiff must be able to show that the defendant’s breach of duty directly caused the injury. Though the plaintiff might be partially responsible, if he or she can prove it wouldn’t have happened without the defendant’s negligence, then the plaintiff will have established cause.
  • Damages. The defendant’s breach of duty must have caused demonstrable harm to the plaintiff. Additionally, the court must be able to compensate the plaintiff for these injuries.

Defenses Against Negligence

Because the law states a pedestrian must yield to a vehicle when crossing outside of a crosswalk, drivers are likely to argue that they are not at fault in these circumstances. There are two common approaches to defending against negligence:

  • Contributory negligence. This means that if person is injured due to his or her own negligence, the other party cannot be held responsible for the injury. In other words, if the defense can prove the person’s own negligence contributed to the accident, the defense will not be held liable. While contributory negligence may be invoked, it is not the most common means of defense.
  • Comparative negligence is a more common strategy. Under comparative negligence, the court determines each party’s degree of fault for the accident and ascribes a percentage of responsibility to both sides. In the case of a pedestrian who is hit while jaywalking, the plaintiff is likely to be assigned some percentage of the blame for breaking the law, but the driver may still be held primarily responsible.

How to Find an Experienced Personal Injury Attorney

Personal injury cases are complicated, especially when the injured party may be considered partially responsible for the accident. If you have been injured while jaywalking, retain a lawyer who has a thorough understanding of personal injury law.

The expert attorneys at Gordon, Elias, and Seely LLP have a proven track record for helping accident victims get the settlement they deserve. For a free case evaluation, call us toll free at (800) 773-6770, or contact us here.

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