The Governors Highway Safety Association (GHSA) reported in 2022 that U.S. pedestrian fatalities (deaths from being hit by vehicles) reached the highest numbers in 40 years. The driver is often at fault because they’re breaking the law (speeding, driving while distracted or under the influence, ignoring stop signs or stoplights, etc.). But that doesn’t mean the driver is always the liable party. As attorneys who often represent pedestrians in accidents, we’re aware of the tactics the driver’s attorneys will use to discredit the pedestrian and remove the blame from the driver. Here are situations where the driver’s attorney could try to claim the pedestrian was at least partially at fault for the accident.

What Responsibilities Do Pedestrians Have While Out Walking?

In general, pedestrians have the same primary responsibility as drivers: They’re expected to exercise a reasonable duty of care. That means they should be walking and driving in a safe manner while obeying the laws of the road. If someone speeds, encounters an icy patch, and hits a pedestrian who is waiting on the curb for the walk light, it’s logical that the driver was the one not exercising duty of care.

However, if the pedestrian was jaywalking or crossing against the light and the speeding driver hit them, both sides could be found partially liable for the injuries sustained.

The duty of care not only refers to legal obligations but actions most reasonable people would describe as taking adequate care. A driver could try to claim that a pedestrian was not exercising duty of care if they wore dark clothing while they walked at night, making them hard for a motorist to see. How much fault the pedestrian might be assigned depends on the other factors in the accident.

Is Washington State a Comparative Fault State?

Washington is a pure comparative fault state. That means if both parties in an accident have some of the fault for the accident, they can each be assigned a percentage of the blame. That can affect the overall damages earned by those who were injured.

For example, say a driver hits a pedestrian. The pedestrian was crossing against the light, but the driver was speeding. The driver could be found to be 70% at fault and the pedestrian 30%. If the pedestrian were injured and awarded a total of $10,000 in damages, that amount would be reduced by 30%–their share of the blame. Instead of receiving $10,000, the pedestrian would receive $7,000.

What Can I Do to Keep Myself Safe While Out Walking?

Probably the most important thing you can do is to stay vigilant. Earbuds are popular walking accessories, but they may prevent you from hearing a vehicle speeding up behind you, and even without sound, staring at your cell phone while walking can distract you from hearing a vehicle approaching too closely. Keep looking all around you, especially when on the street rather than on a sidewalk or trail.

There are several other things you can do to help keep yourself safe.

  • Whenever a sidewalk or trail is available, stay off the road.
  • If walking on the road is the only choice, walk facing oncoming traffic.
  • Obey all traffic signs and signals.
  • Cross streets only at corners, not in the middle of the block
  • Look both ways before entering a crosswalk.
  • Wear bright-colored clothing during the day and reflective clothing at night.
  • Assume drivers may not be able to see you or may be distracted and get yourself out of their way as they approach.
  • Don’t walk while under the influence of drugs and alcohol. Nearly half of pedestrian accidents in 2020 involved a pedestrian who was under the influence.
  • Pay attention to parked vehicles. People trying to leave a parking spot may not pay enough attention to pedestrians.
  • Don’t assume drivers will use their turn signals. Many do not, even when it’s the law. You may have the right of way in the crosswalk, but if the driver doesn’t signal and is distracted, you could end up badly injured.

What Should I Do if I Was Injured by a Driver While Out Walking?

First, see a doctor as soon as possible. There are many injuries that don’t necessarily exhibit symptoms right away, some of which can be serious or even life-threatening. Another reason to see a doctor right away is that if you don’t, the driver’s attorney or insurance company may try to claim that injuries that show up later weren’t related to the accident.

When possible, get the names and contact information of any witnesses to the accident. If there are businesses or residences nearby that appear to have security cameras, make a note of that–the cameras may have caught the accident and can provide substantial evidence.

Then call us at 509-638-1414 to request a free consultation. Even if you fear you were somehow negligent in the accident, we can work through issues of fault and negligence to determine the best outcomes for you.

Something you should not do: Communicate in any way with the driver’s attorney or insurance representative. They could try and get you to say something that can be interpreted as taking full or most responsibility. They could also try to get you to agree to a much smaller settlement than you may be entitled to. Answer no questions; simply refer them to your attorney.