If you are in an accident involving a pedestrian, then you may feel you have no chance to recover damages for the harm you suffered, even if you believe the pedestrian to be at fault. However, despite a common belief that a pedestrian can't be held liable for causing a car accident in which they are injured, the reality is they can be legally responsible in many circumstances. The difference in exactly how much responsibility each party bears varies from state to state. That is why you should understand how blame for an automobile-pedestrian collision is assigned in the various states and what you can expect to recover in damages for your loss:
How blame for an accident is shared
In some accidents involving pedestrians, it is a fairly straightforward matter of assigning blame to one party or the other. For example, if a drunk driver loses control of their vehicle and plows into a crowd of people on the sidewalk, then the driver is clearly at fault from a criminal and civil point of view. However, there are many accidents where the circumstances are less than clear and making a clear-cut determination of fault is difficult.
In response to this legal ambiguity, each of the fifty states have defined how to assign blame among the various parties involved in an accident. While there may be individual differences in each of the state civil codes, each of the states can be categorized into one of three broad, legal frameworks.
Unmodified comparative negligence
In comparative negligence, there is a recognition that a plaintiff may recover from a defendant any percentage of damages equivalent to the defendant's degree of fault. As an example, if a driver involved in an accident with a pedestrian is determined to be 40 percent responsible, while the pedestrian is 60 percent responsible by extension, then the driver may recover 60 percent of their own damages. In states where an unmodified form of comparative negligence is the standard, that theoretically allows for a plaintiff who is found to be 95 percent responsible to recover 5 percent of their damages, for example. In response to such a possibility, which is believed to be a gross injustice by some, many states have opted for what is known as modified comparative negligence.
Modified comparative negligence
Modified comparative negligence operates exactly like unmodified comparative negligence with one key exception: beyond a certain threshold of blame, the plaintiff is barred from recovering damages altogether. Depending on the specific state, the threshold is either set at equally responsible (50 percent to 50 percent blame) or the plaintiff is mostly responsible (51 percent to 49 percent blame). That means that once the plaintiff's responsibility reaches either of those levels, depending on the state, then they are no longer permitted to recover any damages.
The purpose of modified comparative negligence is to prevent someone who mostly caused an accident from pursuing punitive measures against a mostly, or at least equally, innocent party. In an auto-pedestrian accident, the driver is often less likely to recover damages due to a greater possibility of being assigned equal or even slightly greater blame than the pedestrian.
In the last legal framework, which only remains in four states plus the District of Columbia, the plaintiff cannot recover any damages from a defendant unless the defendant is found to be 100 percent responsible for an accident. From a practical perspective, this makes recovering damages in a court a daunting task for a driver involved in an accident with a pedestrian.
What this means for you
As the driver in an accident involving a pedestrian, you can see that much of the assignment of blame varies among the states and that making a recovery for your damages depends upon establishing as strong a case for your innocence as possible. That is why hiring a qualified car accident lawyer is vital to your case; they have the expertise to navigate the complexities of negligence law in your state and to take advantage of the specific nuances that will help you get what you deserve