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Distracted walking and comparative negligence in WV

Distracted driving, particularly the use of cellphones for talking and texting while driving, is something all of our readers are aware of as a significant problem right now in the United States. Statistics bear this fact out. To address the problem, states have passed laws restricting the use of cell phones while driving and implemented public awareness campaigns and other measures.

Although the focus has largely been on addressing distracted driving, it is becoming clear that more awareness needs to be brought to the issue of distracted pedestrians. Injuries to distracted pedestrians involving cellphones have reportedly increased 35 percent since 2010. The problem can be seen by any casual observer in a busy metro area: pedestrians seem just as incapable of putting down their phones as drivers. 

All of this brings up the issue of liability for motor vehicle accidents involving pedestrians. After all, pedestrians are also bound to follow traffic rules—it isn’t entirely up to motorists to keep pedestrians safe. When a pedestrian is hurt by a motor vehicle, they may in fact be partially or totally responsible for their own injuries. When a pedestrian crash occurs because of the negligence of the pedestrian, the issue of contributory negligence may be involved.

Under West Virginia law, juries in personal injury cases are permitted to assign a relative degree of tort liability to the parties involved in the case. Depending on the circumstances, the degree of liability for each party can vary, with the plaintiff’s damages award being reduced by the percentage of his or her degree of liability for the injuries. If the plaintiff is deemed to be responsible for at least 50 percent of his or her injuries, the plaintiff is unable under state law to recover damages.

Whether you are a pedestrian who is harmed partially because of your own negligence or a motorist who has been sued by a pedestrian who was partially or totally at fault for his or her own injuries, it is essential to work with an experienced personal injury attorney. Doing so helps ensure you receive the advocacy you need and deserve.


Charleston Daily Mail, “‘Gabby Road’: As pedestrians grow more distracted, cities adjust,” Marcus Constantino, Dec. 23, 2014.

Claims Journal, “Understanding Comparative Fault, Contributory Negligence and Joint & Several Liability,” Gary Wickert, Sep. 2013. 

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