Determining Fault in a Pedestrian Auto Accident

Although Long Island has fewer pedestrians than urban areas, such as NYC, pedestrian accidents are common. We have fewer crosswalks and areas designated for pedestrian crossing, leaving walkers to cross in the middle of roadways. Unfortunately, pedestrian accidents frequently cause catastrophic injuries, as the pedestrian lacks the protection of a vehicle or helmet. Therefore, even low-speed pedestrian accidents can be devastating. 


If a motor vehicle strikes a pedestrian, the driver will almost always bear a portion of fault. However, contrary to popular belief, a driver is not inevitably wholly liable for hitting a pedestrian. “The pedestrian has the right-of-way” is not always true. For example, if a pedestrian jumps out in front of a moving vehicle without allowing enough time for a driver to stop, the driver may not be deemed fully at fault, if at fault at all. 

If an accident occurs between a motor vehicle and a pedestrian, the pedestrian is likely to bear a portion of fault if he/she:

·      Crosses in the middles of the street or is jaywalking;

·      Crossing when “Do Not Walk” signs are lighted;

·      Walking along or in the middle of highways or bridges, especially where walkers are rare, such as the Long Island Expressway, Sunrise Highway, Northern State Parkway, Southern State Parkway, the Sagtikos Parkway, etc.; 

·      Dodging out into traffic when it is unsafe and/or a vehicle does not have enough time to avoid a collision; 

·      Walking in between vehicles or parking spaces in a parking lot where your visibility is limited. 

Each scenario is unique, and liability will be apportioned based on the facts of your specific situation. It is vital to hire a personal injury attorney from the outset to ensure that you have an advocate fighting to appropriate maximum liability on the driver. Even in situations where it seems obvious that the driver was completely at fault, the insurance companies will cite any reason to support lessening their liability. No matter how badly you were injured by being struck by a motor vehicle, if the driver is not legally at fault, you cannot collect compensation from them or their insurance company. Especially in a case where your injuries are serious, the insurance company will grasp at straws if it has to in order to argue the driver isn’t fully liable. This is because serious injuries are theoretically a high value, and they’re seeking to limit the amount of money they have to pay. 

What if the driver isn’t 100% liable?: 

The law in New York State is “pure comparative negligence.” This means that if the driver is 100% liable, they will have to pay 100% of a judgment or jury verdict. If they’re less than 100% liable, any judgment or jury verdict payable by the driver will be proportionate to their liability. For example, if a driver is 70% liable for the accident and your injuries are worth $100,000, the driver will be responsible to pay $70,000. In pedestrian accidents with catastrophic injuries, proving at trial that a driver is even 1% liable could result in a serious payout on the part of the driver. Hiring strong legal counsel will ensure that your case is handled effectively. 

Who pays for medical expenses?: 

As with a car accident, No-Fault insurance should cover your medical expenses up to a certain dollar amount. Contacting us from the outset of your case will help us advise you in your individual situation best. If you have car insurance, even though you were not in your vehicle during the accident, your No-Fault insurance should cover you for your injuries. Depending on the circumstances, you may be able to or required to utilize the No-Fault coverage purchased on the vehicle or driver. For more information on No-Fault benefits, read our No-Fault Benefits article. 

If you have been hit by a motor vehicle as a pedestrian, schedule a consultation with us to discuss your rights and options. Law Offices of Jennifer G. Tocci, P.C., 353 Veterans Memorial Highway, Suite 200, Commack, New York 11725 (631) 343-7676