A Guide to Proving Liability in Cases of Fatal Pedestrian Accidents

Pedestrian deaths due to collisions with cars are surprisingly common. In 2022, at least 7,508 pedestrians were killed, which was the highest number of pedestrian fatalities since 1981.

Pedestrian accidents are often serious because a heavy car or truck can cause significant damage to someone using a crosswalk or on a sidewalk. Yes, pedestrians can take steps to increase safety when walking near roads, but accidents – including fatal ones – can still occur.

This is because pedestrian-related personal injury cases are unique. Drivers have a higher duty of care to pedestrians and cyclists because these road users do not have the same level of protection as automobile drivers do. Personal injury or wrongful death cases involving pedestrian collisions often focus on a driver’s failure to take reasonable steps to ensure the safety of a pedestrian victim.

It’s essential to establish liability in a fatal pedestrian accident so that the surviving family members can receive the compensation they deserve. This begins with an understanding of negligence laws.

Can Pedestrians Legally Be at Fault for Causing A Crash?

Pedestrians can be partly or fully at fault for causing an accident. Pedestrians who jaywalk illegally, or who move into the road unexpectedly, may be partly to blame for a collision with a car.

Alcohol can also play a role. Though it isn’t illegal to cross the road while intoxicated, it can cause a pedestrian to make bad decisions that result in a collision. In fact, 38% of pedestrians killed in night-time road accidents had a blood alcohol content of 0.08% or higher.

Negligence Laws

Negligence, a fundamental aspect of personal injury law, is the failure to take reasonable steps to ensure the safety of others. In negligence cases, a plaintiff’s lawyer might compare the defendant’s actions to the actions a reasonable person might take in the same situation.

For instance, some pedestrian accident negligence cases involve drivers failing to follow the rules of the road. They might fail to stop for pedestrians in a crosswalk. Other cases may include actions that are technically legal but unreasonable. For instance, a driver may start driving when a light turns green even though a pedestrian is still in the crosswalk, an action that could be considered unreasonable.

Negligence laws can vary by place. For instance, some states allow comparative negligence. This concept assigns blame for an incident based on each person’s level of fault. For instance, if a pedestrian was jaywalking and got hit by a driver looking at their cell phone, the court might also find the pedestrian partly negligent and limit the damages their family receives.

Driver Negligence and Recklessness

Negligence in traffic accidents constitutes a failure to act in a reasonable manner to avoid collisions with pedestrians and other vehicles. Recklessness, on the other hand, is knowingly behaving in a way that puts others at risk. For instance, a reckless driver might drive well over the speed limit.

In negligence cases involving pedestrian accidents, you need to prove that:

  • The driver had a duty of care to pedestrians.
  • The driver breached that duty by acting unreasonably or doing something illegal.
  • The accident was the cause of the injuries. You can’t include pre-existing injuries in the case.
  • You suffered damages, such as medical costs, pain, or lost wages, among others.

In cases involving reckless drivers, you will need to prove the defendant intended to act a certain way and knew they might cause harm. Examples of recklessness may include drunk driving or excessive speeding.

Details of the Investigation

Victims and their attorneys need to prove negligence or recklessness in fatal pedestrian accident cases by gathering evidence from different sources. Here is a look at three of the most important evidence types to gather to support your case.


Photos can be useful evidence for a personal injury case. If you are able, you can take pictures of the following after the accident:

  • Injuries of the people involved in the accident;
  • The vehicle, including the area where it hit the pedestrian;
  • Any skid marks at the scene;
  • Nearby signs or road markings, such as crosswalks;
  • The surface of the road;
  • The weather;
  • General photos of the entire scene.

Photos are essential because they provide visual evidence of the accident’s immediate aftermath. You can submit the pictures to the lawyer creating the case. You may need to sign an affidavit saying that the photos are of the accident scene and accurately depict it.


One of the most important things to capture in your photos of the accident is the extent of the damage to the vehicle, other structures, and the people involved. This helps investigators and lawyers determine how severe the accident was and what types of compensation the plaintiff may be entitled to.

For instance, windshield damage may indicate the driver hit the pedestrian head-on without trying to avoid them. This could indicate a lack of attention or ignoring stop lights or crosswalks. Meanwhile, limited damage on the front end of a vehicle could mean the driver tried to avoid the pedestrian.

Damage to property or infrastructure at the side of the road or on the sidewalk may indicate the driver left the road. This could occur due to speeding, aggressive driving, or failure to slow down in poor weather or bad road conditions.

Severe injuries or fatalities often occur at higher speeds, which in turn result in more extensive damage. The Federal Highway Administration says drivers traveling above 30 miles per hour have a 45% chance of seriously injuring or killing pedestrians. However, that figure drops to 5% at 20 miles per hour. Fatalities often occur when drivers don’t attempt to slow down or are speeding.

Witness Statements

Witnesses can provide statements about what they saw during the accident. A lawyer may use this to help establish liability. These statements can take three forms, including:

  • An informal statement at the scene that is provided to law enforcement or a statement to a lawyer afterward can help establish the facts of the case. You can use it to help build your case.
  • A deposition is a sworn statement that a witness makes in front of the lawyers involved in the case. In some cases, witnesses offer written depositions. These occur during the discovery phase of the trial.
  • Witnesses can give testimony in court. These are sworn statements about what happened in the accident. Testimony can also involve answering lawyers’ questions.

Lawyers could use witness statements to help negotiate a settlement before the case goes to trial. These statements can be included in conjunction with a police report to help build the case.

Police Report

A police report includes details about the accident that could be important for establishing liability. Officers are responsible for collecting facts from the scene and also detailing what they witnessed. Their initial investigation can help you establish liability.

A police report might include:

  • Names and identifying information of everyone involved in the accident;
  • Information about weather and road conditions;
  • A description of the damage to vehicles and injuries;
  • Contact details of witnesses;
  • A narrative of the accident scene, including what the officer perceived to have happened;
  • Traffic tickets or citations given as a result of the accident;
  • A diagram of the accident scene.

Some cities have special accident investigators who use forensic techniques to reconstruct the accident scene. They may be called in for accidents with fatalities or serious injuries. Their reports and testimony could be important for establishing liability.

Negotiations With Insurance Adjusters

In most states, including Oregon, the law requires drivers to have liability insurance. In fatal pedestrian accidents, this insurance may cover the damages and expenses associated with an accident. But in some cases, the surviving family members may be offered an amount that they do not feel is adequate for the pain and suffering they have gone through as a result of the accident.

In this case, the surviving family members can enlist the help of an experienced attorney to negotiate on their behalf.

In many cases, the attorney can use the evidence about the case as leverage during negotiations. If lawyers can prove that the driver was at fault, the insurers may be eager to settle before the case goes to court.

Losing a loved one in a fatal pedestrian accident is a tragic and overwhelming situation. Pedestrian accidents can often lead to serious injuries or death. However, if you and your lawyer can prove liability, you can pursue a settlement and be fairly compensated for your loss.

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