Comment 37521

By Tammany (anonymous) | Posted January 28, 2010 at 11:24:22

"If a Pedestrian chooses to ignore regular safety protocol (ie: look both ways before you cross, EVEN on Main Street --I've seen plenty of wrong-way drivers in my life), then they should be considered partly at fault. Maybe not 50-50, but 25% at least."

This is not quite how the law sees it. If you dash across the street in the midst of fast moving traffic and are hit, you will be deemed to have been contributorily negligent. But the driver will still be deemed to have been "at fault" and will almost surely still be subject to claims for personal injury or wrongful death; any award will simply be reduced by the degree of the injured party's contributory negligence.

I would, thus, draw a distinction between negligence and fault. Fault is a broader moral concept. In the eyes of the law, the driver is, in a way, always at fault, even if the negligence of the pedestrian in some manner "contributed" to the injury suffered. I think this reflects the fact that driving is, by nature, a dangerous endeavour fraught with risk to oneself and (most importantly) others. Every time a person gets into a car and pilots it onto a public highway that person makes a decision, whether conscious or not, to subject others to very considerable risk of injury or death. There is no comparable risk involved in a decision to walk (any risk to others associated with this activity is negligible). The person who creates a risk must alone bear the burden of its consequences. A pedestrian crossing a busy roadway merely accepts the risk of being hit. The idea of negligence reflects this. But the pedestrian does not create the risk and thus can have no legal or moral responsibility for the consequences. Fault, such as it is, always lies with the driver.

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