Can a pedestrian be contributory at fault for a car accident?

It is a given that distracted driving has become an increasingly serious problem in the United States as more and more vehicular amenities, such as built-in GPS devices, stereo systems, and smartphones compete with the road for the driver's attention. This can pose a special hazard at intersections, because in addition to having his or her attention divided a driver may be looking primarily for other cars and not for people on foot -- until they notice such a person too late.

But smartphone distraction is not confined to cars. Most of us can easily recall, or can take a walk and see if we cannot recall, people walking in public areas -- including crosswalks -- so engrossed with their handheld devices that they seem oblivious to their surroundings. Their vision is fixed an a small screen, and their ears are plugged with a corded or bluetooth headset. They seem not to care about what is moving around them, but they should.

Since 2004, the number of people who use their smartphones while walking has increased by almost 300 percent. Indeed, some surveys have concluded that more than 50 percent of pedestrians are engrossed in some sort of distracting activity at any point in time, with smartphones being the most common source of divided attention. This phenomenon is becoming so common that the term "deadwalkers" has been coined to describe pedestrians more in tune with their electronics than with their surroundings.

But what happens if such a "deadwalker" steps into a crosswalk when the traffic signal is against him, and is struck by a vehicle? California is a "pure" comparative fault state: this means that not only can such a pedestrian who sues the driver for personal injury have his damages award reduced by the jury's determination of his percentage of fault for the action, but in theory at least if the driver was not at fault because of the pedestrian's induced cluelessness, he could even recover against the at-fault pedestrian for damage to his vehicle.

Putting the smartphone back in your pocket when you are walking in proximity to traffic may be the smartest thing you can do in such surroundings, not only from the standpoint of comparative negligence but also in avoiding a car-pedestrian accident in the first place.

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