Can a Pedestrian Sue if Hit by a Car While Jaywalking or Distracted?

In Massachusetts, a pedestrian who is jaywalking or distracted at the time of a motor vehicle collision can still recover money damages, although the process may be complicated by the circumstances of their behavior. Under Massachusetts law, pedestrians are generally owed a duty of care by drivers, and drivers owe a duty to yield to pedestrians in crosswalks and other designated areas. However, if a pedestrian is found to be jaywalking or distracted—such as by wearing earphones or looking at a cellphone—their own negligence can impact the damages they may ultimately recover.

Jaywalking is defined as crossing a street outside of a designated crosswalk in violation of traffic ordinances. A pedestrian who chooses to cross the street at a non-designated area commits a traffic infraction and might be considered partly at fault if a collision occurs. On the other hand, distracted walking involves situations where a pedestrian’s attention is diverted by factors like earphones, smartphones or other distractions that prevent them from noticing oncoming traffic. When a pedestrian is distracted, they might not heed signals or notice hazardous conditions, contributing to the accident.

Massachusetts follows a modified comparative negligence system. A plaintiff’s recovery in a personal injury lawsuit is reduced in proportion to their degree of fault for the incident. Nevertheless, a plaintiff can still recover damages if their negligence contributed to the accident, provided that they were less than 51 percent at fault. For example, if a pedestrian is 30 percent responsible for an accident due to jaywalking or distracted walking, and the driver is 70 percent at fault, the pedestrian’s total damages award would be reduced by 30 percent. This means that even if the pedestrian’s actions contributed to the accident, as long as the driver’s negligence is the predominant cause, the injured party may recover compensation for medical expenses, lost wages, pain and suffering, and other related losses.

A skilled pedestrian accident attorney can build a strong case for damages despite the victim’s partial fault by carefully reconstructing the incident, gathering comprehensive evidence, and establishing that the driver’s negligence was the primary cause of the accident. Drivers are expected to be vigilant in areas where pedestrian activity is common, and any failure to appropriately adjust speed or yield could constitute gross negligence. Evidence such as traffic camera footage, witness testimonies, accident reconstruction reports, and expert analyses can all help to clarify the events leading to the collision. 

Additionally, an attorney may show that the pedestrian was jaywalking out of necessity. According to the National Highway Traffic Safety Administration (NHTSA), about 75 percent of pedestrian accidents occur on stretches of road without nearby intersections. In such areas, a driver should be exercising a heightened duty of care. Failure to do so can serve to mitigate the degree of the pedestrian’s fault.

The firm of Feinberg & Alban in Boston, with offices in Brookline and Worcester, offers experienced guidance to ensure that injured pedestrians receive the compensation they deserve. Call us at 617-232-5950 or contact us online to set up your free initial consultation.