Is it always the driver's fault if they hit a pedestrian?

By Michael Shemtoub, trial attorney, Beverly Law. Updated November 2026.

What drivers owe people on foot

Each state gives drivers a duty to yield in crosswalks and a broader duty of care everywhere else. That second duty is the reason a driver rarely escapes all blame.

The Texas and Washington care rules begin with “notwithstanding,” which means they apply even when the pedestrian broke another rule in the chapter. California says the same thing in its own words. Section 21950(d) says the pedestrian’s duty does not relieve a driver of due care toward anyone in a crosswalk, and Section 21954(b) says the same for pedestrians outside one.

What the law asks of pedestrians

Walkers carry duties that mirror the driver’s. The one insurers cite most is the rule against stepping out suddenly. California bars a pedestrian from suddenly leaving a curb and walking or running into the path of a vehicle “so close as to constitute an immediate hazard” (21950(b)). Texas bars the same move when the car is so close that it is impossible for the driver to stop and yield (552.003(b)), and Washington has its own version in RCW 46.61.235(2).

Other duties depend on where you were:

• Outside a crosswalk, you must yield to vehicles. In California the duty runs to vehicles so near they are an immediate hazard (21954(a)); Texas (552.005) and Washington (RCW 46.61.240) say yield to vehicles on the roadway.
• Where a sidewalk is available, Texas bars walking along the roadway, and without one it tells you to walk on the left, facing traffic, unless that side is unsafe (552.006). California has a similar left-edge rule outside business and residence districts (21956).
• In Texas, you may not start across against a “Don’t Walk” or “Wait” signal (552.002(c)).

Breaking one of these rules does not end a claim. It gives the insurer a reason to argue for a percentage. Our page on jaywalking laws covers mid-block crossings in detail.

How each state splits the blame

When both people were careless, the jury assigns percentages. California adopted pure comparative negligence in Li v. Yellow Cab Co., so a pedestrian found 70 percent at fault still recovers 30 percent of the damages. Washington’s RCW 4.22.005 also reduces the award without barring it, with one exception: an injured person who was under the influence, whose impairment was a proximate cause and who is more than 50 percent at fault recovers nothing (RCW 5.40.060).

Texas draws a hard line. A claimant whose share is greater than 50 percent recovers nothing (CPRC 33.001). At 50 percent or less, the court reduces the damages by that percentage (CPRC 33.012). The same facts can produce a partial recovery in Los Angeles or Seattle and nothing in Houston. Our comparative fault guide works through the math with several defendants.

The crash report is a starting point

Officers record what they think contributed to a crash, and adjusters often treat that code as the answer. In TxDOT’s 2025 contributing-factor table, “pedestrian failed to yield right of way to vehicle” appears in 2,328 crashes, 412 of them fatal, while “failed to yield ROW – to pedestrian” appears in 1,603 crashes, 23 of them fatal (TxDOT). An officer may write that code before hearing from a pedestrian who was taken away by ambulance.

Evidence can change that picture. Video from businesses, buses and doorbells shows timing. A vehicle’s event data recorder can capture “pre-crash vehicle dynamics and system status” and driver inputs, according to NHTSA. Phone records can show whether the driver was texting. Lighting, sight lines and the driver’s speed decide whether a careful driver could have seen you in time, which is the question every due care rule asks.

What this means for your case

Expect the insurer to look for something you did wrong, and do not argue about it on a recorded call. Write down where you started crossing, what the signal showed and where the car came from. Save shoes and clothing, which show what a driver could see. If you were in a crosswalk, read our pages on crosswalk crashes in California, Texas and Washington. For how fault changes the money, see what a pedestrian case is worth. Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou.

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Important: This page is general information, not legal or medical advice, and reading it does not create an attorney-client relationship. Every case is different; talk to a lawyer about yours. Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou. Last reviewed: November 7, 2026.