Pedestrian Right-Of-Way & Contributory Fault

The victims of pedestrian accidents often wonder whether their own actions can impact entitlement to financial compensation. From the legal standpoint, this inquiry must be answered in the affirmative. In other words, a claimant can contribute to their own harm in a manner that either precludes or reduces the recovery of damages, even where the Plaintiff is able to establish that a Defendant was negligent. In the reverse, a Defendant can still be held liable, even if the victim was partially at fault. These principles hold true in virtually all personal injury cases based upon negligence in Illinois. Here, the Chicago attorneys of Zneimer & Zneimer P.C. discuss pedestrian injury claims in which fault is disputed due to an issue over which party had the right-of-way.

As a starting point, it is helpful to understand both of the following: (1) the rights and duties of pedestrians pursuant to state traffic control laws; and (2) the meaning of contributory fault, as it applies to tort actions in Illinois. Each are discussed below.

As a general rule, pedestrians do have the right-of-way at crosswalks, however this right is not limitless. When traffic control signals are in place (and in operation) at marked crosswalks, pedestrians must both use them and abide by their signals. When such signals are not in place (or not in operation), the pedestrian’s right-of-way depends on their position in the road in relation to oncoming traffic. Pursuant to 625 ILCS 5/11-1002(a), “[…] the driver of a vehicle shall stop and yield the right-of-way to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.” An exception to this rule exists when a pedestrian tunnel or overhead pedestrian crossing has been provided, in which case the pedestrian must yield the right of way to motorists.

When crossing in areas other than crosswalks, the general rule regarding pedestrian right-of-way is reversed. Pursuant to 625 ILCS 5/11-1003(a), “Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.”

The term ‘contributory fault’ refers to any fault that can be attributed to the Plaintiff “including but not limited to negligence, assumption of the risk, or willful and wanton misconduct.” In personal injury actions, in which fault is at issue, meaning that one or more Defendants challenges their level of culpability, the Plaintiff’s percentage of contributory fault is compared with the fault of each party involved. This concept is referred to as ‘comparative negligence. Illinois, though, follows a modified model of comparative negligence, which allows a Plaintiff to collect damages so long as they were not more than 50% at fault for injuries proximately caused as a result of the Defendant’s negligence. In accordance with this model, recovery would barred for a Plaintiff found to be more than half at fault, while compensation would be adjusted by the percentage of fault assigned to the Plaintiff not exceeding the threshold level.

Given the foregoing, let’s now examine how an issue over right-of-way can impact fault in personal injury claims in which a pedestrian seeks to recover compensation for harm sustained as a result of an accident. To better understand how the two interact with one another, consider some specific ways in which a pedestrian’s actions can provide a potential defense to an opposing party who is challenging fault. Common examples include:

• Jaywalking
• Crossing outside of a crosswalk where one is available
• Crossing against a signal (when in place and in operation)
• Walking on a roadway while significantly impaired by alcohol or drugs
• Failure to use a sidewalk where one is available and its use is practicable
• Walking along a highway or interstate where pedestrians are prohibited
• Hitchhiking/ Soliciting rides
• Soliciting business or contributions

If a pedestrian were to be injured in an accident while engaging in one or more of the above-listed, the Defendant may attempt to negate liability by arguing that the Plaintiff caused their own harm. Seldom though, would these provide a complete defense that precludes recovery altogether, and for several reasons. First, chances are the driver was also partially at fault. Also, consider 625 ILCS 5/11-1003.1, which provides:

“Notwithstanding other provisions of this Code or the provisions of any local ordinance, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian, or any person operating a bicycle or other device propelled by human power and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any obviously confused, incapacitated or intoxicated person.”

In addition, keep in mind that fault is an issue of fact to be decided by the trier of fact. From a juror perspective, they might have sympathy for the pedestrian victim, perhaps because they feel that the motorist was in a better position to avoid striking a person on foot.

Incidentally, when there is a potential risk that recovery may be limited due to a Plaintiff’s contributory fault, obtaining a successful outcome becomes a two-part task. First and foremost, your attorney will want to ensure that the claim is not barred, by establishing that the actions of the Plaintiff were not the primary cause (i.e. less than 50%). Beyond this, an experienced attorney would also seek to maximize compensation, by presenting argument to demonstrate that the Plaintiff’s degree of fault was minimal in comparison to other parties involved.

Having a skilled professional advocating on your behalf can make a profound difference in any pedestrian injury claim. However, because cases in which fault is disputed often proceed to trial, it is vital to select a pedestrian accident attorney with actual litigation experience.

During our decades of practice, the Chicago Trial Lawyers of Zneimer & Zneimer P.C. Lawyers have obtained successful results on behalf of numerous victims, and would like to do the same for you. Contact us today at 773-516-4100, or message us online . We are here to help.