Is a Driver Always at Fault When Hitting a Pedestrian?

No, the driver is not always at fault when hitting a pedestrian. When an accident occurs, there are always many factors that determine who is at fault. By law, when operating a vehicle on the road, the driver has a duty to take reasonable care to ensure the safety of those around them, Pedestrians are also expected to follow a similar responsibility.

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

There is a common misconception that the pedestrian always has the right of way. There are horror stories of pedestrians suffering severe, even fatal injuries from getting hit by a vehicle. Immediately, the driver is assumed to be at fault. Whether it is assumed that they were operating their vehicle in a negligent or reckless manner or driving under the influence of a substance. However, the pedestrian can be at fault too. A common pedestrian infraction is 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. 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.

Following a pedestrian-driver accident, The respective insurance companies will look at the facts of the accident. For the pedestrian, if the insurance company can find evidence that they were at fault for the accident, they can deny the pedestrian's claim. If the driver is injured as a result of negligence by the pedestrian, the driver can actually be qualified to receive damages for the accident.

What evidence is reviewed?

  • Damage to the vehicle.
  • Signs of skid marks
  • Traffic signals
  • 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 Virginia that dictate where pedestrians can and cannot walk in order to maintain safety between pedestrians and motorists

Pedestrians are required by law to cross roadways on marked crosswalks and may not interfere with the passage of vehicles in a careless or malicious manner.

Pedestrians and drivers must obey all laws dictating when to yield for pedestrians and when pedestrians cannot cross.

​Pedestrians are prohibited from stepping onto the highway where the drivers vision would be obscured. 

​Pedestrians are prohibited from walking on roadways unless the road does not have sidewalks, in which case they must walk on the "extreme" left side or edge where the shoulder is wide enough to permit walking

Can the Driver and Pedestrian Share Fault in the Accident?

Yes, this is a possible outcome of a driver-pedestrian accident, and in Virginia, a pure contributory negligence state, the driver or pedestrian can lose out on damages if it is proven that some portion of the fault is found on both sides. For example, If a driver hits a pedestrian on a crosswalk when they have a walk signal, but the pedestrian was impaired in some form, (texting, under the influence of alcohol or drugs, etc.) The driver would be able to use a defense that the pedestrian shared a portion of fault in the accident and the pedestrian could lose out on damages. 

Brian Glass
Virginia personal injury lawyer selected to SuperLawyers Rising Stars List and the NTLA's Top 40 Under 40.