Those Pesky Pedestrians

Who’s at fault when a car hits a jaywalker??

Super Admin
4-minute read

What if the pedestrians who are walking in the road illegally are also doing it in a deliberately taunting manner, or are walking especially slowly for the purpose of holding up traffic?

Granted, that sort of behavior might make the pedestrian appear to be an inviting target, but it actually increases the likelihood that you’ll be found guilty of a crime. If the pedestrian is drawing attention to himself and/or holding up traffic, then the ordinary reasonable driver would be expected to have enough warning of the situation to be able to avoid hitting the pedestrian. I know it’s not fair, Ariadne, but the law’s the law.

As for civil liability, that annoying, taunting, jaywalking jerk (or his next of kin) might very well sue you if you hit him with your car. In most states, such a lawsuit will come down to a question or comparative negligence, or comparative fault. Under this doctrine, the jury would be instructed to look at the extent to which both the driver and the pedestrian failed to exercise reasonable care. For example, if a jury finds that the driver was 70% at fault, and the jaywalking pedestrian was 30% at fault, the jaywalking pedestrian would be able to recover 70% of his damages (which may include medical expenses, lost wages, and compensation for pain and suffering).

If the pedestrian was jaywalking, the jury may well conclude that he or she is at least partly at fault, but the exact percentages are determined by the jury and depend on the facts of each case.

Not every state uses “comparative negligence.” There are still a few that embrace an older rule called “contributory negligence” – and that rule makes it very hard for the jaywalker to recover any money at all.   Under the contributory negligence theory, an accident victim’s failure to exercise due care prevents him or her from recovering anything in a lawsuit. In other words, if the driver can show that the pedestrian’s own carelessness contributed to the accident – even if the driver was speeding or talking on his cell phone or otherwise negligent – then the driver will not be liable to the pedestrian.

Today, the rule of contributory negligence exists in only five states and – I’m sorry to break this to you, Ariadne – Kansas is not one of them. So please drive carefully. And for the rest of you listeners, especially those who live in Kansas, I urge to wait for the signal before crossing the street!

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