When a car strikes a pedestrian the conventional wisdom is often that the driver is always at fault. Pedestrians are vulnerable as they have no protection against a multi-ton vehicle, and the resulting injuries are almost always catastrophic.
While drivers certainly carry a heightened duty of care due to the deadly potential of their vehicles, the unfortunate reality under Texas law is that yes, a pedestrian can be found partially or even entirely at fault for an accident.
This is a critical legal issue because if a pedestrian is found to be even one percentage point over the legal limit of fault, they lose their right to financial recovery entirely. At DFW Injury Lawyers, we deal with these high-stakes disputes regularly.
The moment a catastrophic pedestrian accident occurs, the insurance company for the driver immediately begins building a defense focused on shifting blame to the victim. Understanding how fault is determined and how to legally defend against these attempts is essential for anyone seeking justice and compensation.
Call (972) 440-2320 to discuss your case with an experienced pedestrian accident lawyer.
Key Takeaways: Pedestrian Fault in Texas
- Yes, Pedestrians Can Be At Fault: Under Texas's Modified Comparative Negligence rule, a pedestrian can be assigned a percentage of fault if they violated traffic laws or failed to exercise reasonable care (e.g., jaywalking, crossing against a light, or being highly distracted).
- The 51% Fault Bar is Fatal: If a jury finds the pedestrian is 51% or more responsible for the accident, they are legally barred from recovering any compensation, regardless of the severity of their injuries.
- Defense Strategy: Insurance companies immediately try to shift the blame to the pedestrian to invoke the 51% bar, using arguments like improper crossing, intoxication, or distraction.
- Driver's High Duty: The Last Clear Chance Doctrine is a critical legal defense. It asserts that even if the pedestrian was negligent, the driver is still liable if they had the final opportunity to avoid the collision but failed due to their own negligence (like speeding or distraction).
- Need for Defense: Due to the risk of the 51% bar, legal defense is mandatory. Attorneys can use accident reconstruction and vehicle data (EDR) to prove the driver's negligence was the overwhelming and proximate cause of the crash.
The Legal Framework: Modified Comparative Negligence in Texas
Texas operates under the rule of modified comparative negligence (also known as the "51% rule"). This governs how fault is allocated among multiple parties and dictates whether an injured party can recover compensation.
How the 51% Bar Works
In any personal injury claim, if the case goes to trial, a jury is tasked with assigning a percentage of fault to every party involved in the accident, including the pedestrian.
- If the Pedestrian is 50% or less at fault: They can still recover damages, but their total compensation award will be reduced proportionally by their percentage of fault.
- If the Pedestrian is 51% or more at fault: They are legally barred from recovering any compensation whatsoever.
Example: A pedestrian suffers $500,000 in damages.
- If the jury assigns the pedestrian 20% fault, they recover $400,000 ($500,000 minus 20%).
- If the jury assigns the pedestrian 51% fault, they recover $0.00.
This rule makes the allocation of fault the single most important element in a contested pedestrian accident case. The insurance company's entire defense strategy is often aimed at pushing the pedestrian's assigned fault to 51% or higher.
Scenarios Where a Pedestrian May Be Assigned Fault
While drivers have a duty to maintain a proper lookout and avoid collisions, pedestrians also have a duty to follow the rules of the road and exercise ordinary care for their own safety. Insurance defense teams focus intensely on proving breaches of this duty.
The most common arguments used to assign fault to a pedestrian involve violations of the Texas Transportation Code (TTC):
1. Jaywalking (Crossing Outside of a Crosswalk)
The TTC governs where and how pedestrians must cross a roadway.
- TTC § 552.003: Requires a pedestrian to yield the right-of-way to a vehicle if they are crossing a road at any place other than a marked crosswalk or an intersection.
- Defense Argument: If a pedestrian crosses in the middle of a block or away from a designated crossing area, the insurance company will argue the driver had no reasonable expectation of stopping, and thus, the pedestrian is substantially at fault.
2. Disobeying Traffic Signals
A pedestrian who crosses a road despite clear indicators that they do not have the right of way is often assigned a high degree of fault.
- TTC § 552.002: Pedestrians must obey all traffic control signals.
- Scenarios:
- "Don't Walk" Signal: Crossing against a steady or flashing "Don't Walk" sign.
- Running a Red Light: Crossing a multi-lane road while the light is red, especially at night.
- Leaving the Curb Abruptly: Stepping into the roadway so suddenly that the driver, even if driving legally, has no time to react.
3. Walking on the Wrong Side of the Road
When sidewalks are not available, the law requires pedestrians to walk in a specific manner to increase visibility.
- TTC § 552.006: A pedestrian walking along a roadway where a sidewalk is not available must walk on the left side of the road, or the shoulder, facing oncoming traffic.
- Defense Argument: If the pedestrian was walking with traffic (on the right side) and was struck from behind, the defense will argue the pedestrian increased the hazard and reduced the driver’s reaction time.
4. Impairment or Distraction
Any evidence suggesting the pedestrian was impaired or distracted can be used to assign fault.
- Intoxication: If toxicology reports show the pedestrian was legally intoxicated, the defense will argue the pedestrian’s impairment directly caused the unsafe movement into the roadway.
- Cell Phone Use/Headphones: Testimony or evidence showing the pedestrian was looking down at a phone or wearing noise-canceling headphones will be used to argue the pedestrian failed to exercise their duty of care ("failure to maintain a proper lookout").
Why the Driver Still Carries a Heavy Duty of Care
Even when a pedestrian has technically violated a traffic law (like jaywalking), the driver is rarely absolved of all blame. This is where the skill of your personal injury attorney is critical. We fight to hold the driver accountable for their substantial breach of duty.
The Last Clear Chance Doctrine
Texas recognizes a form of the Last Clear Chance doctrine, which states that even if the pedestrian was negligent in placing themselves in a dangerous situation, the driver still had a duty to use every available means to avoid the collision if they had the last clear chance to do so. This argument requires proving:
- The Driver Saw or Should Have Seen the Pedestrian: The driver saw the pedestrian in danger or should have seen them with proper attention.
- The Driver Had Time to Act: The driver had sufficient time and distance to take evasive action but failed to do so.
Example: A pedestrian is jaywalking across a street at night. A driver sees the pedestrian from a block away but is speeding and distracted by their radio, failing to brake in time. Even though the pedestrian was jaywalking, the driver's combined negligence (speeding + distraction) may carry the greater weight of fault.
The Last Clear Chance doctrine focuses on the critical moments just before impact. If the driver had the final, reasonable opportunity to prevent the accident but failed due to their own negligence, a portion of the fault must be reassigned back to the driver, protecting the pedestrian’s right to recovery.
The Attorney's Role: Defending the Pedestrian’s Fault Percentage
In catastrophic injury cases, the difference between 49% fault and 51% fault is the difference between a multi-million dollar recovery and zero compensation. Our legal strategy is built specifically to defend the pedestrian against the defense’s tactics.
1. Evidence Control and Reconstruction
We do not accept the police officer’s initial assessment or the driver’s testimony.
- Accident Reconstruction: We hire forensic engineers to conduct an independent analysis, focusing on:
- Driver’s Line of Sight: Could the driver see the pedestrian? Were trees, parked cars, or blind spots involved?
- Vehicle Data (EDR): Was the driver speeding or distracted? Black box data can prove the driver never applied the brakes or was accelerating when they claimed to be slowing down.
- Reaction Time: Calculating the minimum safe following distance and reaction time to prove that a non-negligent driver would have been able to stop.
2. Challenging Causation
Even if a pedestrian violated the TTC, the violation must be the proximate cause of the accident.
Example: A pedestrian is walking on the right side of the road. They were struck by a driver who was driving legally, but the driver was severely texting and driving, running completely off the shoulder of the road. We can argue that the pedestrian’s technical violation was not the proximate cause because of the driver’s gross distraction.
3. Maximizing Damages to Justify Litigation
Because a case where fault is disputed is more likely to go to trial, we must prove the damages are substantial enough to warrant the expense and time of full litigation.
- Life Care Planning: Catastrophic injuries require multi-million dollar projections for future medical care, home modifications, and lost earnings. By demonstrating that the victim’s needs are massive, we raise the stakes for the insurance company, encouraging them to settle below the 51% bar.
What to Do If You Are an Injured Pedestrian
If you were struck by a vehicle while walking, you must act decisively to protect your health and your legal claim, especially since the driver's insurance company will immediately attempt to assign you fault.
1. Prioritize Medical Care
Get immediate medical attention, even if you feel "okay." Injuries like mild Traumatic Brain Injury or internal soft tissue damage often have delayed onset. Your medical records are the undisputed proof that the accident caused your injuries. Do not delay treatment.
2. Document the Scene
If you are physically able, take photos of:
- The Driver’s License and Insurance Card.
- The Scene: Skid marks, vehicle resting positions, and any nearby traffic signals or signs.
- Witnesses: Get names and phone numbers of anyone who saw the crash.
3. Do Not Speak to the Insurance Company
The at-fault driver's insurance adjuster will call you very quickly. Do not give a recorded statement and do not answer questions about where you were crossing or what you were doing. Limit your response to: "I have hired a lawyer, and all communication must go through them."
4. Contact a DFW Injury Lawyer Immediately
The sooner you secure legal counsel, the sooner we can intervene, issue spoliation letters to preserve critical evidence, and begin building your defense against the inevitable fault-shifting tactics of the insurance company. Every day that passes allows the defense to gather data and build their case against you.
Texas Pedestrian Law and Your Need to Act
The balance of fault in a pedestrian accident is delicate and highly contentious. While a pedestrian has a duty to look out for their own safety and follow traffic laws, a driver has a paramount duty to control their vehicle and avoid striking a person who is visible or should have been visible.
The insurance company will try to convince a jury that your negligence was 51% or more to avoid paying a catastrophic claim. Our role at DFW Injury Lawyers is to gather the irrefutable evidence, through EDR data, reconstruction, and expert testimony, to prove the driver’s negligence was the overwhelming and proximate cause of the collision.
If you have suffered a severe injury in a pedestrian accident, do not let the insurance company use Texas's comparative negligence law to deny you the compensation you need. Contact us today for a free, confidential case evaluation. We stand ready to fight the insurance company's fault-shifting tactics and maximize your recovery.
Call (972) 440-2320 or fill out our online form now.
Kevin L. Edwards
Founder
Attorney Kevin Edwards is a co-founder of DFW Injury lawyers. Over the last 15 years, Mr. Edwards has dedicated his practice to helping those who have been injured or harmed by the negligence, malfeasance, and/or recklessness of others.
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