Do pedestrians “always” have the right of way?

Pedestrians do not always have the right of way, though they generally do. In some cases, pedestrians can be partially or totally liable for a pedestrian accident.

When do pedestrians have right of way?

Each state has its own pedestrian and crosswalk safety laws. In California, California Vehicle Code 29150 VC says that motor vehicles have to yield the right-of-way to pedestrians who are crossing the street in

• a marked crosswalk or
• an unmarked crosswalk at an intersection.¹

Many pedestrian crashes result from distracted or intoxicated drivers speeding, failing to yield, and swerving.

Pedestrian prohibitions

California Vehicle Code 29150 VC also says that pedestrians have to cross the street safely. It expressly says that pedestrians cannot:

• suddenly leave the curb or place of safety,
• walk or run into the path of an oncoming vehicle to create an immediate hazard, or
• unnecessarily stop in a marked or unmarked crosswalk, or delay traffic.²

Additionally, other California laws prohibit pedestrians from:

• walking in bike lanes where there is a sidewalk or walking path available on the side of the road,³
• going outside the crosswalk at an intersection, like going straight to the opposite corner when there is no crosswalk between those two points,⁴
• crossing at an intersection against the traffic signal or the don’t walk signal,⁵ and
• crossing outside of a crosswalk, intersection, or pedestrian crossing when there are vehicles close enough to be an immediate hazard.⁶

Pedestrians who do any of these things do not have the right of way.

What about blind pedestrians?

Blind pedestrians are often given more protection by personal injury laws.

In California, totally or partially blind pedestrians who have a white cane or a guide dog have the right of way. Motorists approaching these pedestrians have to take all reasonably necessary precautions to keep them safe.⁷

Failing to do this in California is a misdemeanor. The driver of a vehicle can face:

• up to 6 months in county jail, and/or
• between $500 and $1,000 in fines.⁸

Who are considered to be “pedestrians”?

A “pedestrian” does not necessarily have to be someone who is walking. However, different states include different types of people in the definition of a “pedestrian.”

In California, for example, the following people are considered “pedestrians” under the state’s pedestrian law:

• walkers,
• anyone who is in a motorized wheelchair because they cannot walk,
• anyone riding something that is propelled by their own effort, other than bicyclists, like:
  • skateboarders,
  • roller skaters or bladers,
  • people on non-electric scooters,
  • people in wheelchairs,
  • skiers, and
  • ice skaters.⁹

Non-pedestrians

People riding or using the following devices, however, are not considered to be pedestrians:

• bikes,
• motorized bikes or electronic bikes,
• electric scooters, and
• hoverboards.¹⁰

What is considered a “crosswalk”?

Most states define “crosswalk” in similar ways. However, minor alterations in the definition can make a huge difference.

In California, a “crosswalk” is the portion of the roadway that does not have a “no crossing” sign and that either:

• would connect the boundary lines of sidewalks at intersections that are approximately right angles, except where the intersection is of a street and an alley, or
• has distinct markings indicating that it is a pedestrian crossing.¹¹

These crosswalks are often found at intersections that also have:

• traffic lights,
• stop signs, or
• other traffic-control devices.

What happens if the pedestrian caused the crash?

If the pedestrian did not have the right of way and got hit by a car, the pedestrian may be responsible for the accident. With that responsibility comes liability.

If the pedestrian is liable, they may have to compensate the driver for the costs of the crash, even if the pedestrian was more severely hurt.

Shared fault for accidents

Many pedestrian crashes are shared fault accidents. This is especially true when the pedestrian did not have the right of way, was intoxicated, was texting, and/or was in an area where pedestrians were not supposed to be.

In these accidents, both the pedestrian and the driver were partially negligent. In other words, both breached their “duty of care” to share the roads safely with each other by violating traffic and crosswalk laws.

To determine how to apportion fault, different states use different rules such as:

• contributory negligence,
• pure comparative negligence, or
• modified comparative negligence.

Comparative negligence

The vast majority of states use some form of comparative negligence. Under these rules, the judge or jury in the personal injury trial would have to apportion blame for the accident.

• In pure comparative negligence, the plaintiff in the case would see their compensation reduced by the amount of fault they brought to the accident.
• In modified comparative negligence states, the plaintiff’s compensation is reduced by their share of the blame, and if the plaintiff was more than half at-fault, they would recover nothing.

For example: Mary is jaywalking when she is hit by a car driven by Nancy. Mary files a personal injury claim. The jury decides that Mary suffered $100,000 in damages, but was 60 percent at-fault because she jaywalking. In a state that uses pure comparative negligence rules, Mary would only recover $40,000 because of her share of fault in the accident. In a state that uses modified comparative negligence rules, Mary would recover nothing.

In some cases, the driver may be hurt as well. When the pedestrian did not have the right of way, the driver may be able to recover compensation from the pedestrian, even if the pedestrian was hurt more.

Proving fault

Typical evidence in any pedestrian crash lawsuit includes:

• video surveillance footage
• mobile phone video and photos of the scene
• eyewitness accounts
• GPS data
• accident reconstruction experts
• medical records
• the police report

If you are in an accident, always try to document the scene with your phone and gather the contact information of eyewitnesses. The more evidence you have showing you were the victim, the more money you are likely to receive in a settlement.

What compensation is available in a pedestrian accident?

Pedestrians and drivers in a collision are entitled to compensation for their losses if they were not responsible for the accident. They can recover compensation to cover their:

• medical bills,
• lost wages,
• reduced earning capacity,
• property damage,
• pain and suffering, and
• loss of consortium.

A personal injury attorney can help victims recover what they deserve.

Pedestrian accidents that end with a fatality can lead to a wrongful death claim. These lawsuits are filed by the victim’s loved ones on the victim’s behalf.

Potential plaintiffs should strongly consider establishing an attorney-client relationship with a personal injury lawyer from a reputable law firm to make these complicated legal claims.

Additional reading

For more in-depth information, refer to these scholarly articles:

• Effects of Drivers’ Age on the Comprehension of a Pedestrian Right-of-Way Warning Sign – Transportation Research Record: Journal of the Transportation Research Board.
• Negotiation Between Vehicles and Pedestrians for the Right of Way at Intersections – IEEE Transactions on Intelligent Transportation Systems.
• Misunderstanding of right-of-way rules at various pedestrian crossing types: Observational study and survey – Accident Analysis & Prevention.
• Pedestrian’s risk-based negotiation model for self-driving vehicles to get the right of way – Accident Analysis & Prevention.
• Crosswalk Confusion: More Evidence Why Pedestrian and Driver Knowledge of the Vehicle Code Should Not Be Assumed – Transportation Research Record: Journal of the Transportation Research Board.

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