California is a comparative liability state, which means that more than one individual may be found liable, including the pedestrian. Therefore, liability can be divided based on the degree of fault. Damages will also be divided based on the share of fault. Finally, any available damages will be reduced depending on an individual’s degree of fault.
Even if a pedestrian was jaywalking when the accident happened, he or she may be able to recover at least some damages. This is because whether a pedestrian was jaywalking or walking through a section of road with “no crossings” signs, a driver must still do everything in his or her power to avoid hitting a pedestrian.
Let’s consider an example. Say that a pedestrian jaywalks through a road with "no crossing" signs and is then struck by a vehicle. If it is determined that the injured pedestrian was 95% liable for the accident and that pedestrian suffered $100,000 in medical expenses, the pedestrian would only recover $5,000 in damages.
Duty of care will be considered when determining fault in a jaywalking incident. The primary question that will be asked is: who followed their duty of care and who didn't? Every driver and every pedestrian has a duty of care to one another: a driver must do everything in his or power to avoid hitting a pedestrian, and a pedestrian must do everything they can to safely cross a street.
Let’s analyze an example to further contextualize comparative liability as it relates to pedestrian accidents. Say that a pedestrian had the right-of-way and was crossing the street. If that jaywalking pedestrian had earphones on and was also texting when he or she was hit, it is almost certain that a court of law will impose a significant degree of liability on that pedestrian.
Despite all of this, some may still wonder: if a pedestrian was hit by a car, how can that pedestrian possibly be responsible? Even if a pedestrian has the right-of-way, which they do not when they choose to jaywalk, they still have a duty of care to pay attention to their surroundings and do everything in their power to avoid being hit by a car. In conclusion: jaywalking will place at least some degree of liability on the pedestrian and will also minimize available damages.