Jaywalking is the act of walking across the street when the light is red or not in the designated crosswalk. If a car hits you while you are jaywalking, you may be able to receive compensation if the driver was negligent or broke the law in some way. However, the driver will argue that you were at fault for not following the law. When both people are doing something wrong, the doctrines of negligence, contributory negligence, and comparative fault come into play.
Basically, negligence is the failure to act in a reasonable manner to avoid causing injuries to others. If a person fails to act reasonably, and through this failure, causes harm to the person or property of another, he or she has committed negligence. That person is then responsible for compensating the victim for whatever harm he or she caused.
There are certain elements that must be present for negligence to be determined. There must be a duty of care, a breach of the duty of care, injury that results, and proof of causation that the negligence directly led to the injury.
In the case of jaywalking, drivers have a duty of care to look out for pedestrians, but pedestrians also have a duty of care to mind vehicles on the road. There can be breach of duty of care in both directions. Unless there are witnesses, it can be difficult for police and courts to determine who was at fault.
In this case, the driver is going to argue, in his or her defense, the victim contributed or caused his or her own injuries by jaywalking. The theory is that nobody should be forced to pay for injuries that are actually the fault of the person who was injured.
Defenses of distracted walking or distracted driving could be relevant if either party was using a cell phone at the time of the accident. Obstructed access or visibility of lights and signs could also be used as a defense.
There are two basic approaches to this defense: contributory negligence, and comparative fault. States differ on how they use each approach.
Under the contributory negligence theory, if the defense can show that the plaintiff was at all at fault, there is no liability, no matter how much at fault the defendant was.
Consider this example: a person is jaywalking (which is, in itself, careless behavior), and is hit by a car whose driver was speeding, talking on his phone, and reading the newspaper, and adjusting the radio at the same time. Most would agree that the driver is more to blame than the pedestrian, even though they are both at fault. However, under a theory of contributory negligence, the jaywalking pedestrian would not be able to recover any money.
More courts use a theory of comparative negligence. Under this theory, the jury would be instructed to look at the relative degrees of fault and assign each party a percentage.
Using the same example above, suppose a jury finds that the driver was 80% at fault, and the jaywalking pedestrian was 20% at fault. The jaywalking pedestrian would then be able to recover 80% of his damages (medical expenses, pain and suffering, etc.).
In such cases, it is up to the jury to decide exactly what percentage of fault each party bears, and modify their award accordingly. If the pedestrian was jaywalking, it is very unlikely that they would find that he or she bears none of the fault. The exact percentage of fault borne by each side would depend on the facts of each case.
It is best to consult a lawyer for all civil claims. A personal injury lawyer can help you build your best case and represent you in court.