Struck on foot: what Texas law actually asks after a pedestrian is killed
A pedestrian was killed on Interstate 30 in Arlington this week. We didn’t handle the case and we don’t know the family. But we have handled enough of these to know exactly how the argument will be framed, and it is worth explaining, because most people get it wrong in a way that costs them.
Within days, an insurer will point out that the person was on a highway where people on foot generally aren’t permitted. In their telling, that single fact ends the discussion. Under Texas law it does not.
Right of way is a rule, not a verdict
Texas sets out where a person on foot may and may not walk, and controlled-access highways are largely off limits. Breaking that rule matters. It is evidence of negligence, and a jury is entitled to weigh it.
What it is not is an automatic bar. Texas uses proportionate responsibility — fault is divided by percentage across everyone who contributed. A person on foot who shouldn’t have been there can carry a large share and still recover, reduced by that share, as long as it does not exceed 50 percent. Cross that line and recovery disappears entirely.
So the whole case lives or dies on where the percentage lands. That is not a technicality. It is the difference between a family being provided for and being told no.
The driver’s duty doesn’t switch off
A driver who has the right of way is still required to drive with ordinary care. Texas law obliges a driver to exercise due care to avoid hitting a person on the roadway regardless of who was where they should be. In practice, the questions that decide these cases are:
- Speed. Not just the limit — the speed that was reasonable for the light, the weather, and the traffic that night.
- Attention. Phone records and infotainment logs establish what the driver was doing in the seconds before impact.
- Sight distance. How far ahead was the person visible? Lighting, road curvature, signage, and headlight aim all bear on this, and all of it can be measured.
- Reaction. Vehicle data commonly records speed, braking and steering before a collision. Whether the driver braked at all, and when, is often recoverable.
- Impairment. Alcohol, drugs, or fatigue shift the analysis sharply.
Why the first week matters more than the first month
Highway cases are decided on evidence that has a short life. Roadway debris is swept. Vehicles are repaired or sold for salvage, and the module that holds the crash data goes with them. Traffic and business camera footage is overwritten on cycles measured in days. Witnesses who stopped that night scatter.
The other side generally does not wait. An insurer with real exposure can have an investigator at the scene the same night, measuring and photographing. A family, understandably, is planning a funeral. By the time they think about a claim, the only complete record of what happened belongs to the people they will be negotiating against.
Who can bring a wrongful death claim in Texas
Texas limits these claims to a defined group: the surviving spouse, the children, and the parents of the person who died. Any of them may file individually or together. Siblings cannot bring a wrongful death claim, however close they were.
Two separate claims usually arise from one death. The wrongful death claim belongs to those family members and compensates what they lost — financial support, companionship, mental anguish, lost inheritance, household services. The survival claim belongs to the estate and covers what the person suffered before death, along with medical and funeral costs.
The general deadline is two years from the date of death. Narrow exceptions exist. Claims involving a governmental entity — a city, a county, a transit authority, a road contractor working under a public contract — carry formal notice deadlines that arrive far sooner, sometimes within months. If a public road defect, a work zone, or a government vehicle is in the picture, the clock is much shorter than two years and should be treated as urgent.
What families can do in the first days
- Ask that the vehicle not be repaired, sold, or scrapped until it has been inspected.
- Write down the names of anyone who stopped, and anything they said.
- Photograph the scene at the same hour of day, before signage or lighting changes.
- Keep every document — the crash report, medical records, the funeral invoice.
- Decline to give a recorded statement to the other driver’s insurer until you have advice.
None of that requires hiring anyone. It simply preserves the option.
Reporting that prompted this post
We write about incidents reported in the local press to explain the legal questions they raise. We don’t represent anyone involved unless we say so.
Our Garland personal injury attorneys handle matters like this every day. The case review is free.
This post is general information about Texas law, not legal advice about your situation, and reading it doesn’t make us your attorneys. Every case turns on its own facts.
Our Recent Post
