Is a Driver Always at Fault When Hitting a Pedestrian?

When is a Pedestrian at Fault for Getting Hit by a Car?

There is a common misconception - “the pedestrian always has the right of way.” When a car crashes with a person the injuries are usually devastating and sometimes deadly. The immediate response in most instances is it is the driver’s fault. There are immediate assumptions - he was reckless, he was drinking, he was texting….

However, the pedestrian can be at fault too. We have all seen the pedestrians walking along a sidewalk, with their headphones on and looking down at the phone and you think “oh they are going to look up and stop before entering the street” and to your shock they do not. Or the pedestrian just walk out in front of a car in a main street and just never look up assuming you will have to stop for him because, after all, he has the right of way. There are laws the pedestrian has to obey. For example jaywalking. If the driver has the right of way and a pedestrian jaywalks, resulting in being hit by a car, the pedestrian would be at fault for acting in a negligent manner. The pedestrian was “negligent” because he did not act reasonably for his own safety. This illegal action often occurs in cities at intersections with heavy foot traffic.

Some of the other ways a pedestrian can be at fault:

Walking on restricted roadways.

Crossing the road on a crosswalk, but against the traffic signal.

Crossing with an obstructive view.

Impaired walking i.e, entering a street while intoxicated, under the influence of drugs, distracted by texting, etc.

People sometimes think just because they are not driving what difference does it make that I may be under the influence of alcohol. It’s not illegal to drink and walk right? Yes it is not illegal or a crime that you can be charged. BUT, it does weigh in on whether the pedestrian was acting reasonably for his safety when you hear his story as to what he did and saw when the crash happened.

Following a pedestrian-driver crash, the police are the first to investigate the facts of what caused the crash and usually have access to the most accurate information. If there is a claim to be made against the driver his insurance company will also launch an investigation. This investigation will look for any facts that the insurance company can point the finger at the pedestrian to either deny the claim or suggest it was primarily the pedestrian’s fault and offer pennies on the dollar when the pedestrian and his attorney make a claim for damages.

What evidence is reviewed?

Damage to the vehicle.

Signs of skid marks

Traffic signals – schematic diagrams of the signals and their timing sequencing

Potential visual obstructions

Road and weather conditions

Statements

Driver and pedestrian phone records

Toxicology test results

Police report

Any surveillance footage

There are specific traffic laws in Rhode Island that dictate where pedestrians can and cannot walk in order to maintain safety between pedestrians and motorists. Here are specific jury instructions and statutes that apply:

A pedestrian who exercises due care by looking and observing the traffic before he/she enters the crosswalk has the right to assume that vehicles on the roadway will yield the right of way. Although a pedestrian in a crosswalk has the right of way, he or she must still be watchful for his or her own safety.

Right of Way in Crosswalk (R.I.G.L. §31-18-3)

When traffic control signals are not in place or not in operation the driver of a vehicle must yield the right of way, slowing down or stopping if need be, to yield to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger. However, no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.

Crossing Other than at Crosswalks (R.I.G.L. §31-18-5)

Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection must yield the right of way to all vehicles upon the roadway.

Crossing Where Tunnel or Overhead Is Provided (R.I.G.L. §31-18-6)

Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided must yield the right-of-way to all vehicles upon the roadway.

Crossing Between Intersections (R.I.G.L. §31-18-7)

Between adjacent intersections at which traffic control signals are in operation, pedestrians must not cross at any place except in a marked crosswalk.

Due Care by Drivers (R.I.G.L. §31-18-8)

Every driver of a vehicle must exercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle upon any roadway. Every driver must give an audible signal when necessary and must exercise proper precaution upon observing any child or any obviously confused, intoxicated, or incapacitated person.

Right Half of Crosswalks (R.I.G.L. §31-18-9)

Pedestrians must move, whenever practicable, upon the right half of crosswalks.

Walking in Street Prohibited (R.I.G.L. §31-18-10)

Where sidewalks are provided it is unlawful for any pedestrian to walk along and upon an adjacent roadway. Where sidewalks are provided it is lawful for a person to run or jog along and upon an adjacent roadway, and if the person shall begin to walk he or she shall walk upon an available sidewalk. However, it is not negligent to walk in the highway facing traffic if the sidewalk is in an unsafe condition.

Walking, Jogging, or Running on Left (R.I.G.L. §31-18-11)

Where sidewalks are not provided any person walking, jogging, or running along and upon a highway shall when practicable walk, jog or run only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction. Under no circumstances shall anyone walk, run, or jog on any interstate highway within this state.

Right-of-way on Sidewalks (R.I.G.L. §31-18-18)

The driver of a vehicle crossing a sidewalk must yield the right of way to all traffic proceeding along and upon the sidewalk.

Can the Driver and Pedestrian Both Be at Fault and Share Responsibility?

Yes, this is a possible outcome of a driver-pedestrian accident. Rhode Island is what is referred to as a pure comparative negligence state. What does this mean? Even if the pedestrian is more than 50% at fault he can still recover damages. His damages are reduced by his percentage negligence. So if his damages are $100,000 and he is 60% negligent he will receive $40,000. Other states’ laws are if you are even 1% negligent you receive nothing. Some say if you are 50% or more negligent you receive nothing.

Can a Third Party Be Held Responsible?

Yes. Your attorney needs to look at all the facts and see if there is liability against another party. If the driver was under the influence of drugs or alcohol, there can be claims made against the person or entity that served the alcohol to the driver. There are cases where a property owner may be negligent in how they maintain their property and have shrubbery or other materials that block the view of drivers. Your attorney needs to know to look for these other theories of liability and insurance coverage.

What if the Driver Does Not Have Enough Insurance?

This is a very real and serious issue to research. Rhode Island law only requires an individual to carry $25,000 insurance coverage. And even at that there are many people who cannot afford that coverage and chose to take the risk and drive without any insurance coverage. This leaves you the victim at risk for their being very little or no insurance coverage. This is where your attorney has to know to carefully look at all insurance coverage possibilities, including employer or owner liability, umbrella policies, uninsured/underinsured motorist policies.