In any accident involving a pedestrian and a motor vehicle, the pedestrian will likely suffer the worst damages. Drivers have a duty of care to always yield the right-of-way to pedestrians, even if they cross the street illegally, due to the high chance of a pedestrian suffering injuries from a car striking him or her. This technically applies to jaywalking, or a pedestrian crossing the street outside of a crosswalk. However, the jaywalking pedestrian will likely bear some fault for the accident, potentially jeopardizing his or her ability to seek legal recovery.
Most states in the U.S. uphold comparative negligence laws, meaning a plaintiff could potentially bear partial liability for his or her injuries if he or she was in any way negligent and contributed to those injuries. In most states that follow modified comparative negligence laws like Texas, a plaintiff can still seek recovery through a personal injury lawsuit if his or her fault does not exceed that of the defendant. In states like California that follow pure comparative negligence laws, a plaintiff’s fault does not bar recovery at all, but the plaintiff loses a portion of the case award equal to his or her fault percentage.
For example, a personal injury claim in Texas for $100,000 in total damages leads to a trial, and the jury finds the plaintiff 10% at fault. This is below the defendant’s fault percentage, so the plaintiff can still claim compensation, but the plaintiff loses 10% of the case award to reflect his or her fault. This results in a net of $90,000 in damages instead.
In another example, a personal injury claim in California for $100,000 in total damages leads to a trial, but this plaintiff is 80% at fault for the accident. The plaintiff can still technically claim the remaining $20,000 in damages under the state’s pure comparative negligence statute, but this high fault percentage could leave the plaintiff open to a counter-claim from the defendant.
In a jaywalking accident, it is very likely the jaywalking pedestrian will bear some fault in the subsequent lawsuit. Depending on state law and the severity of the comparative negligence, the jaywalking pedestrian may not qualify for as much compensation as he or she originally expected.
Any ambiguity when it comes to fault for a jaywalking accident will lead to an investigation. Both sides of the lawsuit will investigate, look for available evidence like traffic camera or dash cam data, and consult with relevant experts if necessary. For example, a plaintiff may require expert witness testimony to accurately convey the full extent of his or her pain and suffering to the jury in a case, ensuring he or she receives appropriate compensation.
Traffic camera data or data from the vehicle’s computer could reveal the driver was speeding at the time, further diminishing the jaywalker’s level of fault for the accident. It is also possible for the investigation to reveal other evidence, such as the pedestrian entering the road between parked vehicles, making it impossible for the driver to stop in time to avoid hitting the pedestrian.
Ultimately, a driver has the higher duty of care on the road when it comes to avoiding accidents, but pedestrians must also exercise care and refrain from crossing the street illegally. Although jaywalking may at first seem to be a minor or even silly offense, the reality is that jaywalking laws exist to protect pedestrians. Ensuring a proper flow of both vehicle traffic and foot traffic helps prevent injuries, so anyone who jaywalks does so at his or her own risk.