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When is an accident the pedestrian's fault?

Let's say it is rush hour, and you are driving through heavy traffic. All of a sudden, a pedestrian crosses in front of you. To prevent colliding with the pedestrian, you step on the brake pedal. In the space of one second, you are struck from behind, and so is that driver, and so is the driver behind that driver. All four drivers are injured in the pile-up.

It doesn't happen often, but sometimes drivers sue pedestrians - the opposite of most pedestrian injury situations.

More pedestrian problems

Here are a few other things drivers should know about pedestrians:

  • There is no law saying pedestrians must carry insurance.
  • Jaywalking is illegal for a reason. When a pedestrian walks in front of traffic in a place not designated for crossing, someone has to yield. It can be hard for drivers to stop in time.
  • The same applies to crossing when the crosswalk signal says DON'T CROSS.
  • Small children often do not know or appreciate the dangers of traffic, and they can be unpredictable.
  • "Crossing while intoxicated" makes it very difficult for drivers to adjust to changes in pattern.
  • Disabled or slow-moving people crossing the street, even at a crosswalk, call for extra alertness on drivers' parts.
  • Needless to say, stepping onto a limited access highway or freeway is exceedingly dangerous.

Negligence and the duty of care

The bottom line is that all of us - drivers, cyclists, pedestrians - are obliged to honor a duty of care when the safety of others is concerned. Under the law, we all must look out for one another. When that duty is not obeyed, that's negligence. Even if the pedestrian was negligent, only the first driver would file a claim against the pedestrian. The other drivers should not have been following so closely.

Do pedestrians always have the right of way?

That is an expression you hear sometimes, but it is not true. Pedestrians are obliged to obey signals, and to cross at crosswalks. They are not allowed to dart into traffic.

There are situations in which car and pedestrian share responsibility for an accident. New Jersey follows a "modified comparative fault" scheme. What this means is that, if an accident is more the plaintiff's fault than the defendant's, the injured plaintiff will not be compensated. If the pedestrian in the example above can be shown to have caused the accident in which he or she was injured, the driver should not have to compensate the pedestrian.

E very case is different, of course. But it is good to bear in mind that all sides in an accident can bear responsibility for what happens.

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Smith & Gaynor, LLC
60 Washington Street, Suite 302
Morristown, NJ 07960

Phone: 973-532-2661
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