Comparative fault in pedestrian accidents determines how compensation is allocated when both the driver and pedestrian share responsibility for a collision. Understanding how your state applies comparative fault rules helps pedestrian accident victims assess their claims and anticipate potential defenses.
What Is Comparative Fault?
Comparative fault (also called comparative negligence) is a legal doctrine that apportions responsibility between multiple parties who contributed to an accident. If both the driver and pedestrian were negligent, each bears a percentage of fault, and compensation is adjusted accordingly.
For example, if a pedestrian suffers $100,000 in damages but is found 20% at fault for crossing against the signal, their recovery would be reduced to $80,000 (damages minus their fault percentage).
Types of Comparative Fault Systems
States follow different comparative fault systems with varying effects on pedestrian recovery:
Pure comparative fault (used in states like California, New York, and Florida) allows recovery no matter how much at fault the pedestrian is. Even a pedestrian 90% at fault can recover 10% of damages.
Modified comparative fault (50% bar) allows recovery only if the pedestrian's fault is less than 50%. At 50% or more fault, the pedestrian recovers nothing.
Modified comparative fault (51% bar) allows recovery if the pedestrian's fault is 50% or less. At 51% or more fault, recovery is barred.
A few states still follow contributory negligence, which bars any recovery if the pedestrian is even 1% at fault—an extremely harsh rule for accident victims.
Common Pedestrian Fault Allegations
Drivers and insurers frequently allege pedestrian fault based on various behaviors. Jaywalking—crossing outside a crosswalk or against signals—is the most common allegation. Other arguments include pedestrian distraction from phone use, failure to look before crossing, dark clothing at night, and intoxication.
However, pedestrian fault does not excuse driver negligence. A driver who was speeding, distracted, or failed to yield may still bear majority fault even if the pedestrian made mistakes. Drivers have duties to watch for pedestrians regardless of whether pedestrians are where they "should" be.
Proving Driver Fault Despite Pedestrian Negligence
Strong evidence of driver negligence helps minimize fault assigned to pedestrians. Evidence of speeding (through EDR data, skid marks, or witness testimony) shows the driver could not stop in time. Phone records proving distraction demonstrate the driver was not watching the road.
The last clear chance doctrine in some states holds that even if the pedestrian was initially negligent, the driver who had the last opportunity to avoid the accident bears full responsibility for failing to do so.
Insurance Company Tactics
Insurers routinely inflate pedestrian fault allegations to reduce payouts. Adjusters may interpret ambiguous facts against the pedestrian or cite pedestrian mistakes that were not actually causative. Aggressive defense of your position with evidence is essential.
Never accept blame in statements to insurers. Phrases like "I should have been more careful" can be used to establish fault. Let investigation determine what actually happened.
Comparative Fault at Trial
If cases go to trial, juries determine fault percentages. Jury instructions explain comparative fault rules, and jurors allocate responsibility based on evidence presented. Effective presentation of driver negligence while addressing pedestrian conduct influences outcomes.
Even in cases where some pedestrian fault exists, skilled attorneys can minimize fault findings and maximize recovery within comparative fault frameworks.
If you were injured as a pedestrian and face fault allegations, consult with an attorney who can investigate the accident, counter defense arguments, and protect your right to compensation.