Recently I was contacted by a woman who was hit by a car while she was crossing the street. She wanted to know if I could represent her in a claim for injuries against the driver of the car that hit her. Upon investigation, I learned that the woman had been crossing a busy street mid-block, had passed between two cars that were stopped for traffic, and was hit by another car that was approaching a red light. When I told her that I could not represent her she was shocked. “Don’t pedestrians always have the right of way?” she asked. Sadly for her, the answer is no – pedestrians do NOT always have the right of way.
Washington law requires that everyone who uses the roads, whether a driver or a pedestrian, exercises reasonable care for their own safety and for the safety of others. Clearly, if you are a pedestrian in a crosswalk there are presumptions in your favor, but even then, if you suddenly run in front of a moving car, you could share some of the fault. Ultimately, fault is determined by a judge, arbitrator or jury, using the analysis of whether one or both parties involved failed to exercise reasonable care. If you have a walk light, but you see a car barreling through the intersection, reasonable care demands that you wait to see if the car will stop before you step into its path. If the car hits you, the driver will still be liable, but you may end up sharing some of the blame.
These days many pedestrians walk with headphones or while looking at their phones. This can affect the determination of who is at fault when a pedestrian is hit by a car. Imagine if a jury was told you were crossing the street while looking down at your phone and a car made a legal right on red and hit you. Certainly the driver would have some share of the blame, but the jury would likely assign at least some portion of the blame on the pedestrian as well.
This does not mean drivers have no responsibility. Drivers are required to look out for pedestrians, and they are required to see what is there to be seen. Even if a pedestrian is jaywalking, if the driver should have seen her, the driver will have a least some share of the blame for the injuries. Often if its dark and the pedestrian is wearing dark clothing the driver will claim they couldn’t see the pedestrian, but even then the driver will likely have some responsibility.
The bottom line is that determining liability in pedestrian accidents can be complicated. If you or someone you know was hit by a car or bus as a pedestrian, you should consult with a personal injury lawyer with experience handling pedestrian injury claims. For more information on pedestrian accidents you can check out our website, or just give us a call. We’d love to hear from you.