If a car hits you while you are jaywalking, you may be able to receive compensation if the driver was negligent or broke the law in some way. However, the driver can argue that you were at fault for not following the law.

When a pedestrian jumps in front of a oncoming car where the driver did no wrong and was following the law, the pedestrian will be less likely to collect damages for his or her injuries since the driver did not have any other choice and could not get out of the way. In this case, video footage and/or witness evidence can help the insurance adjuster in who’s at fault for the pedestrian’s injuries.

What is Negligence?

For the pedestrian to claim that the driver was at fault even if they jaywalking, the pedestrian has to prove that the driver was negligent. Negligence is the duty to act in a reasonable manner to avoid causing injuries to others.

If a person fails to act reasonably, and through this failure, causes harm to the person or property of another, he or she has committed negligence.

In most jurisdictions, four legal elements must be satisfied in order to prove negligence in a car accident claim:

  • Duty of Care: The defendant must owe the plaintiff a duty of care. In the case of driving laws, all drivers owe other drivers the duty to drive safely and to obey all traffic laws at all time.
  • Breach of Duty: It must be shown that the defendant breached their duty to drive safely. For example, if the defendant failed to obey traffic signs, this considered a breach of the duty of care.
  • Causation: The plaintiff must prove that the defendant’s breach actually caused their injuries. If the defendant did not actually cause the injuries, they will likely not be held liable.
  • Damages: The plaintiff must be able to calculate the losses and costs associated with the injury and put it into monetary amounts.  If they cannot easily determine the amount in numbers, their damages award may be reduced or even denied.

Who Would Be at Fault?

When a driver hits a pedestrian even if the pedestrian was jaywalking, negligence must be proved. However, the driver will not always be at fault if the pedestrian acted in a negligent way as well.

The amount of fault can also be divided depending on whether one party was at fault or both party’s at fault and also whether the state follows comparative fault theory.

Read More About:

What is the Comparative Fault?

More courts use a theory of comparative fault. Under this theory, the jury would be instructed to look at the relative degrees of fault and assign each party a percentage.

For example, suppose a jury finds that the driver was 80% at fault, and the jaywalking pedestrian was 20% at fault. The jaywalking pedestrian would then be able to recover 80% of his damages (medical expenses, pain and suffering, etc.).

In such cases, it is up to the jury to decide exactly what percentage of fault each party bears, and modify their award accordingly. If the pedestrian was jaywalking, it is very unlikely that they would find that he or she bears none of the fault. The exact percentage of fault borne by each side would depend on the facts of each case.

What are the Defenses to Negligence?

In this case, the driver is going to argue, in his or her defense, the victim contributed or caused his or her own injuries by jaywalking. The theory is that nobody should be forced to pay for injuries that are actually the fault of the person who was injured who would be the pedestrian who was jaywalking.

Under the contributory negligence theory, if the defense can show that the plaintiff was at all at fault, there is no liability, no matter how much at fault the defendant was.

For example, a person is jaywalking, which is illegal, and is hit by a car whose driver was speeding, talking on his phone, and reading the newspaper, and adjusting the radio at the same time.

Most would agree that the driver is more to blame than the pedestrian, even though they are both at fault. However, under a theory of contributory negligence, the jaywalking pedestrian would not be able to recover any money.

Do I Need to Hire a Lawyer?

Using either of these two defenses can get very complicated. However, these rules can determine your eligibility to recover a damages award. You should consult an experienced personal injury attorney to ensure that you receive the compensation for your injuries that you deserve.