When a car hits a pedestrian, fault usually comes down to negligence: whichever party failed to use reasonable care and caused the collision is legally responsible, and in many cases both the driver and the pedestrian share some portion of the blame. In a car versus pedestrian accident, who is at fault is rarely obvious at the scene, and the answer shapes everything that follows, from which insurance pays to how much the injured person can recover. In 2023, 7,314 pedestrians were killed and roughly 68,000 were injured in U.S. traffic crashes.1NHTSA. Traffic Safety Facts 2023 Data: Pedestrians The sections below walk through how fault gets assigned, what to do in the hours and days after a crash, and the deadlines that can quietly end a claim.
How Fault Is Decided
Both drivers and pedestrians owe duties on the road, and liability analysis asks who broke theirs and whether that breach caused the injury.
What the Driver Owes
Drivers must watch for pedestrians and operate carefully enough to avoid hitting someone on foot. The most common failures are distracted driving, speeding, running red lights, and failing to yield at crosswalks. In most states, drivers must yield to pedestrians in both marked and unmarked crosswalks. An unmarked crosswalk exists at virtually every intersection where two roads meet, even without painted lines, which catches many drivers off guard.
When a driver violates a traffic law and that violation causes the accident, many states apply a doctrine called negligence per se. Instead of debating whether the driver acted reasonably, the traffic violation itself serves as proof of negligence. A driver who runs a red light and hits someone in a crosswalk has a very difficult time arguing they weren’t at fault.
What the Pedestrian Owes
Pedestrians aren’t automatically blameless. Crossing against a signal, jaywalking mid-block, darting out from between parked cars, or walking along a highway where pedestrian access is prohibited can all establish fault. In most states, pedestrians crossing outside a crosswalk must yield to vehicles, which means waiting until you can cross without forcing a driver to brake suddenly or swerve.
Even so, a pedestrian’s traffic violation doesn’t give a driver a free pass. Drivers still have a duty to exercise care to avoid hitting someone they could have stopped for in time.
When Both Sides Share Blame
Most pedestrian accidents aren’t 100% one person’s fault. Maybe the driver was speeding, but the pedestrian crossed against the signal. How your state handles shared fault dramatically affects what you can recover, and this is often the single most important legal variable in the case.
Thirty-three out of 51 jurisdictions use a modified comparative negligence system. Your compensation is reduced by your percentage of fault, but only if your share stays below a threshold, usually 50% or 51% depending on the state. If you’re found 30% at fault for jaywalking and your damages total $100,000, you’d recover $70,000. Cross the threshold, and you get nothing.
Twelve states use pure comparative negligence, where you can recover something even if you were 99% at fault, though your award shrinks proportionally. The remaining four states and the District of Columbia still follow contributory negligence, an all-or-nothing rule where any fault on your part, even 1%, bars you from recovering anything. In those jurisdictions, the stakes of the fault determination are enormous.
Insurance adjusters know these rules well and routinely try to shift a higher percentage of fault onto the pedestrian. They will scrutinize whether you were in a crosswalk, whether you were looking at your phone, and whether you were wearing dark clothing at night. Strong scene evidence and witness statements are the counterweight.
What to Do at the Scene and in the First Days
The first priority is safety and medical attention, not paperwork. Move out of the roadway if you can do so without worsening an injury, and call 911. Even if you feel fine, adrenaline masks symptoms. Traumatic brain injuries, internal bleeding, and hairline fractures routinely go unnoticed for hours or days. An emergency room visit creates the earliest medical record linking your injuries to the collision, which matters when an insurance adjuster later questions whether the accident actually caused your problems.
While you’re still at the scene, collect the driver’s name, license plate number, insurance information, and phone number. Ask any bystanders if they saw what happened and get their contact information. Witnesses disappear fast, and their accounts often become the strongest evidence in a disputed claim.
Use your phone to photograph the vehicle’s position, any skid marks, the crosswalk or intersection layout, traffic signals, and your visible injuries. Capture the weather and lighting conditions. If a police officer responds, get the report number before leaving. The police report is not the final word on fault, but it’s the first document every insurer and attorney will request.
In the following days, keep your paperwork together: emergency room records, imaging, follow-up treatment notes, prescription receipts, pay stubs or employer letters confirming lost income, and a dated personal journal of your pain, mobility, and daily limitations. Those journal entries become critical evidence for non-economic damages, because adjusters and juries respond to specific, dated accounts far more than vague testimony months later.
Which Insurance Pays
In most states, you file against the at-fault driver’s liability insurance, and the fault analysis above drives the outcome. Twelve states work differently.
No-Fault States and PIP
In no-fault states, your own personal injury protection coverage pays your initial medical bills and a portion of lost wages regardless of who caused the accident. You file against your own policy first, not the driver’s.
PIP typically covers 80% of medical expenses and 60% of lost wages, though exact percentages and dollar limits vary. Minimum coverage requirements range from $10,000 to $50,000 depending on the state. The tradeoff is that you generally cannot sue the driver for pain and suffering unless your injuries meet a serious injury threshold defined by state law, usually a fracture, permanent impairment, significant disfigurement, or medical costs exceeding the PIP limit.
Pedestrians face a wrinkle here: PIP is tied to auto policies, and many pedestrians don’t own a car. You may be covered under a household member’s policy if you’re listed on it, and in some no-fault states the driver’s PIP policy covers the pedestrian they hit. The rules vary enough that checking your specific state’s requirements matters immediately.
Uninsured Drivers and Hit-and-Run
Being hit by an uninsured driver, or one who flees, doesn’t necessarily leave you without options. If you or a household member carry uninsured motorist coverage on an auto policy, that coverage typically extends to you as a pedestrian and covers medical expenses, lost wages, and in some cases pain and suffering.
Most states require insurers to offer uninsured motorist coverage, and many include it by default unless you reject it in writing. In a hit-and-run, your own uninsured motorist coverage is often the only realistic path to compensation. File a police report immediately in those cases, both because insurers require it and because it documents the incident before evidence disappears. If you have no auto insurance of any kind, your health insurance can still cover medical costs, but recovering lost wages and pain-and-suffering compensation becomes significantly harder without an at-fault driver to pursue.
What You Can Recover
Damages fall into two broad categories. Economic damages cover every measurable financial loss: hospital bills, surgery, physical therapy, prescriptions, medical equipment, home modifications, lost wages, and reduced earning capacity if your injuries prevent you from returning to your previous job. Future medical costs estimated by your treating physicians are recoverable as well.
Non-economic damages compensate for losses without receipts: physical pain, emotional distress, anxiety, depression, loss of enjoyment of activities you used to do, and the overall disruption to your quality of life. These numbers are inherently subjective, which is why dated journal entries carry real weight.
One expense most people don’t see coming: if your health insurer paid your medical bills while your accident claim was pending, it may have a legal right to recoup those payments from your settlement. This is called subrogation. If your health insurer covered $30,000 in treatment and you settle for $80,000, the insurer may claim that $30,000 back before you see it. For employer-sponsored health plans governed by federal law, these subrogation rights can be particularly aggressive. Medicare also has a statutory right to recover payments it made for accident-related care from any settlement proceeds.2Office of the Law Revision Counsel. United States Code Title 42 Section 1395y You can sometimes negotiate liens down, but you need to identify and address them before signing a release.
Deadlines That Can End Your Case
Every state imposes a strict deadline for filing a personal injury lawsuit, and missing it almost always kills the claim entirely. The most common window is two years from the date of the accident, which applies in roughly half the states. Others range from one year to as many as six years, so checking your state’s specific deadline is not optional.
Two exceptions can shift the deadline. Under the discovery rule, some states start the clock when you discovered or reasonably should have discovered the injury, not when the accident happened, which matters for internal injuries and traumatic brain injuries that develop symptoms gradually. And if the injured person is a minor, most states pause the deadline until the child turns 18, with the statute then running from that birthday.
These deadlines apply to lawsuits, not insurance claims. File an insurance claim as soon as you can; the statute of limitations is the hard cutoff for your right to sue.
Government Vehicles
If a government-owned vehicle or on-duty government employee hit you, the rules are dramatically different and the deadlines are much shorter. For federal vehicles, you must file a written administrative claim with the responsible agency before you can sue, within two years of the accident.3Office of the Law Revision Counsel. United States Code Title 28 Section 2401 If the agency denies your claim or fails to respond within six months, you then have six months to file a lawsuit in federal court.4Office of the Law Revision Counsel. United States Code Title 28 Section 2675
State and local government claims are even more variable and often more urgent. Many states require a formal notice of claim within as little as 30 to 180 days of the accident, well before the standard statute of limitations would expire. Missing that administrative notice typically bars your lawsuit entirely, no matter how strong the case. If a city bus, police car, or other government vehicle hit you, pinning down the correct notice deadline should be your first legal step.
Fatal Accidents
When a pedestrian accident is fatal, the right to sue transfers to the victim’s surviving family or estate representative. A surviving spouse, children, or parents can typically bring a wrongful death claim for funeral and burial expenses, lost financial support the deceased would have provided, and loss of companionship. Wrongful death deadlines generally run one to three years but can be shorter than the standard personal injury statute in some states, and the compressed government-vehicle notice deadlines apply here too.