Technically, no—a jaywalker does not have the right of way. But this simple rule is often used to wrongly blame the victim of a tragic accident when the real question should be: what could the driver have done to prevent it?
If a person is crossing the street mid-block, away from a designated crosswalk, the term “jaywalking” is often used. It’s a word loaded with implication, suggesting recklessness and fault on the part of the person on foot. Many people believe that if a pedestrian is jaywalking, the car driver is automatically cleared of any responsibility.
This is one of the most dangerous and persistent myths on our roads.
The truth is far more complex and is rooted in a fundamental legal principle: a driver’s duty of care. While a pedestrian has a responsibility to be careful, the person in control of a two-ton machine of steel and glass holds a much higher degree of responsibility to prevent a tragedy.
If you or a loved one has been hit by a car while on foot, you may be feeling blamed, confused, and stressed. You might even be blaming yourself. It is essential for you to understand that the law looks at these situations very differently. The question is not simply, “Do jaywalkers have the right of way?” The more important question is, “What could the driver have done to prevent this?” Consult a lawyer experienced in pedestrian accidents to advocate your case.
The Common Misconception: Unpacking the “Jaywalking” Defense
Let’s first address the term “jaywalking” itself. In Missouri, the law states that pedestrians should use crosswalks when available and obey traffic signals. When crossing outside of a marked crosswalk, a pedestrian is required to yield the right-of-way to vehicles.
On the surface, this seems simple. If the pedestrian is supposed to yield and doesn’t, it’s their fault, right? Not necessarily. This statute doesn’t exist in a vacuum. More importantly, it does not erase a driver’s primary and constant legal obligation to operate their vehicle safely and avoid collisions.
Think of it this way: the rules of the road are not a game where one person’s mistake gives another person a free pass to cause harm. They are a system designed to keep everyone safe, especially the most vulnerable. And on any road, the most vulnerable person is the one without a metal frame, airbags, and a seatbelt.
An insurance company for the at-fault driver will almost always seize upon the fact that you were not in a crosswalk. They will use the term “jaywalking” to intimidate you, to devalue your claim, and to shift 100% of the blame onto you. They do this to protect their bottom line, not to reflect the legal reality. The reality is that a driver’s duty of care often overrides a pedestrian’s location on the road.
The Driver’s Duty of Care: A Higher Responsibility
In Missouri, every person operating a motor vehicle has what is legally known as a “duty of care.” This isn’t just a suggestion; it’s a legal requirement. It means a driver must operate their vehicle with the same level of caution that a reasonably prudent person would use under similar circumstances.
What does this mean in practical terms for drivers in Southeast Missouri?
- Keeping a Proper Lookout: This is the most critical duty. A driver cannot simply stare at the road a few feet ahead of their bumper. They must be actively scanning their entire environment—left, right, ahead, in mirrors, and on sidewalks. They must look for potential hazards, including people who might be about to step into the street. A driver who says, “I never even saw them,” may be admitting they were not keeping a proper lookout.
- Driving at a Safe Speed: The posted speed limit is a maximum, not a suggestion of the required speed. A reasonably prudent driver adjusts their speed for the conditions. Is it raining? Is it dusk? Are they driving through a busy commercial area in Scott City with lots of storefronts? Are they near a park or a school in Cape Girardeau? Driving 45 mph in a 45-mph zone might be legally permissible, but if the conditions warrant a slower speed to be able to stop in time, a driver has a duty to slow down.
- Maintaining Control of the Vehicle: A driver must be able to brake, swerve, or otherwise control their vehicle to avoid a collision. If a driver is distracted, they have given up a significant degree of control.
- Sounding a Horn: The law requires drivers to give a warning by sounding their horn when a reasonably careful person would see a pedestrian in a position of danger. If a driver had time to see a person and honk but failed to do so, it can be a sign of negligence.
This duty of care means a driver can’t just mindlessly proceed down a road, assuming everyone else will follow the rules perfectly. They must anticipate the unpredictable nature of human behavior, especially in populated areas. They must be prepared for a child to dart out from between parked cars, an elderly person to misjudge the speed of traffic, or someone to simply try to cross the street where it’s most convenient.
How Missouri’s Laws Handle Shared Fault: The Rule of “Pure Comparative Fault”
Even if it’s determined that a pedestrian was partially at fault for an accident, that does not mean they cannot recover compensation for their injuries. Missouri operates under a legal doctrine called pure comparative fault.
This sounds complicated, but the concept is actually quite fair. This means that in a personal injury case, a jury (or a judge) will assess the total amount of the injured person’s damages, including medical bills, lost income, pain and suffering, etc. Then, they will assign a percentage of fault to each party involved.
Let’s imagine a scenario:
A pedestrian is crossing a street in Sikeston at night, wearing dark clothing and not in a crosswalk. A driver is going 10 miles over the speed limit and is glancing down at their phone to change a song. The driver hits the pedestrian, causing severe injuries.
After reviewing all the evidence, a jury might decide that the pedestrian was 20% at fault for crossing where and how they did. However, they might find that the driver was 80% at fault because they were speeding and distracted—two actions that drastically reduced their ability to see the pedestrian and stop in time.
Under Missouri’s pure comparative fault rule, the pedestrian can still recover compensation. Their total award would be reduced by their percentage of fault, 20% in this case.
This is a critical point. The insurance adjuster will never explain this to you. They will tell you that because you were jaywalking, you are entitled to nothing. This is legally untrue. Even if you believe you might have been partially at fault, you may still have a very strong case for recovering the majority of your damages.
Factors That Determine a Driver’s Fault in a Pedestrian Accident
When investigating a pedestrian accident, the focus quickly shifts to the driver’s actions in the moments leading up to the impact. Here are some of the key factors that are analyzed to determine if the driver was negligent:
- Distracted Driving: This is perhaps the most common factor in modern accidents. Was the driver texting, talking on the phone, adjusting the GPS, eating, or otherwise not paying full attention to the road? Phone records, witness statements, and even the driver’s own admission can prove distraction.
- Speeding: As discussed, this includes not just exceeding the speed limit but driving too fast for the conditions. Accident reconstruction experts can often determine a vehicle’s speed at impact with a high degree of accuracy.
- Driving Under the Influence (DUI): If a driver is impaired by alcohol or drugs, their reaction time, judgment, and ability to see hazards are all severely compromised. This almost always results in a very high percentage of fault being assigned to the driver.
- Visibility and Time of Day: A driver has a duty to use their headlights at night and in poor weather. They must also be more cautious when visibility is limited, such as at dawn or dusk, or in fog or heavy rain.
- The “Last Clear Chance” Doctrine: This is a key legal concept. Simplified, it asks: Did the driver have an opportunity to avoid the accident, even if the pedestrian put themselves in a dangerous position? If a driver could have seen the pedestrian from a reasonable distance and had enough time to stop, swerve, or honk, but failed to do so, they can be held liable. The driver had the “last clear chance” to prevent the harm, and their failure to take that chance is negligence.
- Location of the Accident: A driver is expected to be on higher alert in certain areas. These include residential neighborhoods where children play, areas near bars and restaurants where patrons may be less cautious, and roads near university campuses or senior centers throughout the SEMO region.
Why You Need a Legal Advocate
Being hit by a car is a uniquely traumatic event. The physical injuries can be catastrophic, ranging from broken bones and spinal cord damage to traumatic brain injuries. The financial consequences are immediate and terrifying. Medical bills pile up while you are unable to work and earn a living.
But the emotional and psychological toll is just as severe. You are in pain, your life has been turned upside down, and now an insurance adjuster is calling you, pressuring you for a recorded statement, and implying the whole thing was your fault. It is an incredibly isolating and distressing experience. You may feel like you have nowhere to turn and no power in the situation.
This is precisely why you need a dedicated legal advocate on your side. You need someone who understands the law, who knows how to investigate an accident, and who will protect you from the insurance company’s tactics. While you focus on the most important thing—your physical and emotional recovery—your legal team can handle the heavy burden of building your case. They can:
- Preserve crucial evidence from the scene.
- Identify and interview all potential witnesses.
- Subpoena the driver’s cell phone records to check for distracted driving.
- Hire accident reconstruction experts to prove the driver’s speed and negligence.
- Work with your doctors to document the full extent of your injuries and future medical needs.
- Shield you from all communication with the insurance company.
- Fight to hold the responsible party accountable and secure the maximum compensation in your case.
Jaywalkers do not have the right of way. But the driver of a car always has the responsibility to look out for them. The law is designed to protect the vulnerable, and a legal team’s job is to ensure the law works for you.
Talk with a Trusted Pedestrian Accident Lawyer Today
At Cook, Barkett, Ponder & Wolz, we have been fighting for justice for the injured in Cape Girardeau, Sikeston, Poplar Bluff, and across the SEMO region for decades. Our approach is built on the belief that our success comes not just from knowing the law, but from knowing you. We take the time to understand the full impact of your injury on your health, your family, and your future.
If you or someone you love has been injured as a pedestrian, do not let an insurance company or self-doubt prevent you from seeking justice and compensation. The driver had a duty to see you and to keep you safe. Let us help you hold them accountable.
Contact the dedicated team of injury lawyers serving Cape Girardeau at Cook, Barkett, Ponder & Wolz today at (573) 335-6651 or through our online form for a free, no-obligation case evaluation. We are here to listen, to answer your questions, and to help you pursue justice and compensation.