COURT CASES on PEDESTRIAN ACCIDENTS
PEDESTRIAN LAWFULLY in CROSSWALK
Section 179 (2) of the Motor Vehicle Act effectively states that a pedestrian cannot cross the street in front of a vehicle that is so close that it is impracticable for the driver to yield the right of way.
In Culos v. Chretien, a pedestrian was attempting to cross a marked crosswalk, when he was struck by a vehicle making a right hand turn. The Defendant admitted fault, however argued that some of the blame should be borne by the Plaintiff pedestrian. The Court rejected this line of argument, holding the Defendant to be completely at fault for the accident.
[46] …… The plaintiff entered the crosswalk. At the same time, the defendant moved into the intersection with her car angled to its right. The plaintiff carried on while the defendant stopped briefly at the thin white line painted across the extreme end of 3rdwhere it joins Lorne. Neither party saw the other. The defendant looked to her rear left to check for traffic on Lorne. At that moment, the plaintiff was established in the crosswalk and was directly in front of the defendant’s car. The defendant then began to move her car forward without first looking in the direction that she was traveling. In the result, the front of her car struck the plaintiff.
[47] The defendant’s submission that the plaintiff was contributorily negligent is superficially attractive – after all, her car was there to be seen. The presence of her car in the intersection at the same time that the plaintiff was in the crosswalk could be thought to constitute an immediate hazard for the plaintiff.
[48] The flaw in the defendant’s argument is this: the plaintiff was established in the crosswalk before the defendant got underway from her second stop to check for traffic. Had the plaintiff seen the defendant, he would have seen her move forward from the stop line, stop at the thin white line, and look back over her left shoulder to check for traffic on Lorne. Given his position in the crosswalk, the plaintiff was entitled to assume that a motorist would give way to him. He could only be found to be careless for his safety if he had stubbornly insisted on maintaining his right‑of‑way in the face of knowledge that an oncoming motorist was behaving in a way that indicated the motorist would not yield to him. Had the plaintiff been looking at the defendant, he would not have seen anything about her behavior that would have led him to believe that she would not yield to him. That is because he would have seen her move from the stop line on 3rd to the thin white line and stop again while looking over her left shoulder. No one in the plaintiff’s position would have had a reasonable suspicion that the defendant, whose driving up to that moment had been careful and considerate, would nevertheless go forward without first looking at where she was going.
[49] In short: the defendant’s behavior ahead of the collision was not such as to put a reasonable pedestrian in the plaintiff’s position on notice that the defendant was not going to yield to the pedestrian. That hypothetical pedestrian would have reasonably assumed that if the defendant was careful to check for traffic before entering Lorne, she would likewise be careful to look in front of her before she put her car in motion and moved out onto Lorne. Nothing in the evidence suggested that the plaintiff ought to have appreciated that the defendant would do as she did.
In Bulatovic v. Siebert, the Plaintiff was injured as a pedestrian when crossing the street on a crosswalk, and consequently brought an ICBC claim for damages such as pain and suffering, income loss, diminished earning capacity, and cost of future care. The Plaintiff maintained that she had the right of way, however ICBC’S lawyer maintained that she failed to exercise a reasonable standard of care by crossing the street on a “don’t walk” signal. The Court eventually preferred the testimony and evidence of the Plaintiff, and awarded $65,000.00 for pain and suffering for neck pain and headaches suffered by the Plaintiff for three years by the time of trial.
[84] I find that the plaintiff stepped into the crosswalk on Granville Avenue, going south, when the pedestrian signal said “Walk”. I accept her evidence that she pushed the button that controlled the pedestrian light and she waited for it to turn to “Walk”. Again, her evidence on this point was not directly challenged. The evidence and submissions that the plaintiff took inadequate attention or could have somehow avoided the accident are not, in my view, persuasive. More persuasive, is the defendant’s evidence that he could have looked to his left in order to see the plaintiff.
[85] It follows from Section 132(1) and my findings above that the plaintiff entered the crosswalk with a “Walk” signal, that she had the right of way over all vehicles, including the defendant. It also follows that the defendant was negligent in not looking for pedestrians in the crosswalk when he made his left turn. To be clear, I do not find that the plaintiff was contributorily negligent.
In Cairney v. Miller, the Plaintiff was struck by the Defendant’s vehicle when crossing a marked crosswalk. The Defendant attempted to argue that the Plaintiff should bear some of the blame, as he should have seen that the Defendant was not yielding the right of way. The Court rejected this argument, and found the Defendant fully liable for the accident.
[25] Given Mr. Thompson’s evidence, which I accept, the plaintiff was visible in the crosswalk when the defendant’s vehicle crested the hill and entered the intersection. I cannot accept that poor lighting or dark clothing had anything to do with what happened and must infer that the defendant was not paying sufficient attention in the circumstances. The plaintiff did nothing sudden or unusual to cause the collision. He was simply established in the crosswalk while the defendant’s car was approaching.
[26] Mr. Thompson’s evidence differs from that of both the plaintiff and the defendant with respect to speed. Witnesses often differ on the characterization of such matters, and both the plaintiff and the defendant agree that she was proceeding slowly, a factor in the plaintiff’s calculation that he believed the defendant was going to stop.
[27] This is difficult to reconcile with Mr. Thompson’s immediate reaction that there was going to be a collision between the plaintiff and the defendant’s vehicle. The effect of Mr. Thompson’s evidence is that, to him, the defendant’s vehicle appeared to be an immediate and obvious hazard to the plaintiff, because it was going too fast.
[28] I have carefully considered whether the plaintiff’s failure to apprehend that the defendant was not going to yield to him, engaged an obligation to avoid injury to himself that modified his right to the right of way.
[29] The evidence, taken as a whole, however, suggests that the plaintiff assumed that the defendant would stop in circumstances when it was reasonable to expect she would see him. It is often possible to say in retrospect that had a party paid more attention, he or she might have avoided the collision. In the circumstances here, I think this would impose a standard of more than usual diligence and watchfulness on the plaintiff at odds with his right to be in the crosswalk and the presumption that the plaintiff would abide by the rules of the road.
PEDESTRIAN in PARKING LOT
In Russell v. Parks, the Plaintiff was injured in a shopping mall parking lot, and brought an ICBC claim, seeking damages for pain and suffering, past loss of earning capacity, diminished earning capacity, and cost of future care. The Plaintiff was struck as the Defendant was attempting to park. Liability was in issue in the case, with the Plaintiff arguing that he was clearly there to be seen, and ICBC’S lawyer arguing that the Defendant was there for the Plaintiff to be seen, and that the Plaintiff had left his place of safety i.e. the walkway, before walking into the path of the Defendant. ICBC’S lawyer also argued that the Plaintiff breached his common law duties by failing to take reasonable steps in the furtherance of his own safety. The Court eventually ruled that the Plaintiff was 2/3 negligent.
[40] I conclude the plaintiff’s degree of fault is greater than the defendant’s. The defendant was entitled to take the route he did in order to park his vehicle. He was travelling at an appropriate rate of speed under the circumstances. Ironically, it was his performance of a safety check to his right which resulted in his momentarily not seeing what was occurring in front of him.
[41] The plaintiff, on the other hand, had no reason to leave the walkway when he did. He was looking down as he was in the process of crossing the concrete barrier and entering the parking lot. When he looked up the defendant’s vehicle was right in front of him.
[42] In my opinion liability should be apportioned 66 ⅓% against the plaintiff and 33 ⅓% against the defendant.
DRIVER TURNING on a GREEN LIGHT
In Rintoul v Gabriele, the Court found the Defendant 100% at fault for turning left into the path of a pedestrian, commenting that:
[24] There was a break in the trial of just over two months. During that time period, Ms. Gabriele walked through the accident scene with her counsel. After the trial resumed, Ms. Gabriele was called to give evidence as part of the defence case. Testifying in chief, she gave a slightly different version of events. She said in her evidence in chief that after looking at the southwest corner, she looked back in front of her, did not see anything, and then proceeded to make her turn.
[25] I do not accept this second version of events. But even if I did, and I were to conclude that Ms. Gabriele did look forward at all before starting her turn, she could not have done so carefully; otherwise she would have seen the plaintiff, who would have been there to be seen, just slightly to her left. I find that the defendant commenced her turn and proceeded into the crosswalk without making any adequate check to see if there were pedestrians whom she was at risk of hitting.
[28] Subsection 127(1)(a)(ii) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 provides that a driver facing a green light,
…must yield the right of way to pedestrians lawfully in the intersection or in an adjacent crosswalk at the time the green light is exhibited …
[29] It is common ground that even if a pedestrian has the right of way, the common-law duty to use care for one’s own safety remains active. A pedestrian who steps into the path of a known danger will generally be held contributorily negligent: British Columbia Electric Railway. Co. v. Farrer, [1955] S.C.R. 757.
[30] Where a pedestrian has the right of way, the burden is on the defendant driver to show that the pedestrian ought to have known that the driver was not going to yield the right of way, and to show that at the point when the pedestrian ought to have had that knowledge, the pedestrian could reasonably have acted to avoid injury.
[31] I do not find that the defendant has discharged that onus.
PEDESTRIAN “CUTTING THE CORNER”
In Anderson v Kozniuk, the Plaintiff was crossing the street in an unmarked crossing, when he decided to cut the corner, meaning that he did not go straight across the street, but more at an angle away from the intersection. At this point, he was struck by a vehicle. The Court found the Plaintiff to be 30% liable, commenting that:
[67] Following the jurisprudence in this province, it appears that there is a common law, as well as a statutory duty on a driver to maintain a proper look-out so that he/she can anticipate risk, even where that driver has not seen the hazard: Nelson (Public Trustee of) v. Shinske (1991), reflex, [1992] 62 B.C.L.R. (2d) 302 (B.C.S.C.), Fraser J.
[68] There is also a corresponding duty on a pedestrian as expressed by Fraser J. He states simply that there is a duty upon motorists and pedestrians alike to be vigilant for a reasonably apparent potential hazard.
[69] When a driver approaches a crosswalk where she has some degree of knowledge and experience that pedestrians approaching the bus stop or the grocery store may be crossing, she should take the precaution of maintaining a careful look-out and slightly reducing her speed. The very presence of the marked crosswalk should have been an indication to her of the possible presence of pedestrians in the area. Had Ms. Kozniuk taken these steps, it is possible she would have seen the plaintiff before the last second, when it was too late to avoid him.
[70] Her evidence was that her attention was focused directly ahead on the roadway. While the standard required of a driver is not that of perfection, she ought to have been able to glance to the periphery to check that there were no pedestrians in the roadway.
[71] Mr. Anderson also had the obligation to take care for his own safety in his use of the road that morning. Had he crossed in either the lighted crosswalk or within the informal boundaries of the unmarked crosswalk, it is possible Ms. Kozniuk would have seen him. As well, had he remained in the boundaries of the crosswalk, his journey to the curb on the opposite side of the street would have been shorter and he may have been able to avoid the car entirely. By angling across towards the bus stop, as he did, the plaintiff was on the roadway for a longer period of time than he would otherwise have been the case.
[72] By leaving the crosswalk, the plaintiff was also entering a darker area of the street, thus heightening his own risk as a pedestrian that the oncoming driver might fail to see him. He failed to even glance over his shoulder as he left the confines of the crosswalk to locate the car he had earlier noticed approaching from the north on 12th. His awareness of the presence of an approaching vehicle ought to have alerted him to the necessity of checking its proximity to him…
[75] I find that both parties bear fault in this accident. Ms. Kozniuk had reason to look for pedestrians in the area of the crosswalk and the bus stop and she failed to keep a proper lookout. Therefore, her negligence resulted in hitting the plaintiff.
[76] The plaintiff left the relative safety of the crosswalk to jaywalk towards the bus stop at a quick pace on a dark, wet street without looking over his shoulder to locate the oncoming vehicle which he had earlier noticed as he began crossing. The defendant has satisfied me that the plaintiff’s failure to take care for his own safety was a proximate cause of the accident.
DRIVER PROCEEDING STRAIGHT WITH PEDESTRIAN IN CROSSWALK AGAINST “NO WALK” SIGNAL
In Furness v Guest, the Plaintiff attempted to walk across the crosswalk against a flashing “no walk” signal, when he was struck by the Defendant driver. The Court held that the pedestrian was 75% at fault.
[56] In the result, I find that the plaintiff failed to keep a proper look out for the pedestrian traffic control signal, which caused him to enter the roadway in disobedience to that signal. That was a violation of s. 132(3)(a) of the Motor Vehicle Act, and this conduct constituted a failure to take reasonable care for his own safety. That negligent act was a contributing cause of the accident. I am not satisfied that the plaintiff was in violation of s. 179(2). I am not satisfied that he had any opportunity to yield the right-of-way to the truck being driven by Mr. Guest, because I am not persuaded that the truck was moving forward before the plaintiff stepped in front of it.
[57] I infer from the plaintiff’s testimony that he believed that the driver of the truck had seen him, before he stepped in front of the truck. That was a dangerous and unwarranted assumption. In my opinion, the plaintiff should have taken steps to ascertain that the truck driver had seen him, before ever stepping in front of the truck. He could easily have tried to make eye contact with the driver, or wave his arms to get his attention, before proceeding forward. This was all the more urgent, because the left-turn arrow had turned green (which the plaintiff ought to have known, but did not). In my view, the plaintiff’s failure to make sure that he had been seen by the truck driver, increased his degree of fault.
[58] I find that the plaintiff’s degree of fault for the accident is considerably greater than the degree of fault of Mr. Guest. There is no legal formula for determining how fault for an accident should be divided. Counsel for the plaintiff referred me to a number of authorities in support of his submission that Mr. Guest should bear the far greater fault for the accident. Of course, the evidence and the findings of fact are different in all cases. As a consequence, previously-decided cases are of limited assistance at best. I found the cases of Funk v. Carter 2004 BCSC 866 (Williamson J.) and Morrison v. Pankratz 1991 CarswellBC 1765 (Shaw J.) to be of some assistance, particularly in the discussions of the general principles.
[59] In my opinion, liability should be apportioned as to 25% against Mr. Guest, and 75% as against Mr. Furness, and I so order.
JAYWALKING
In Wong-Lai v Ong, a jaywalking pedestrian was found 75% at fault, however the Defendant was also found partially at fault for not paying sufficient attention.
[55] My view is that the law is as set out in Cook v. Teh, following B.C. Electric Railway Co. Ltd. v. Farrer, 1955 CanLII 43 (SCC), [1955] S.C.R. 757. That is that, regardless of who has the right of way, both parties have a duty to exercise due care.
[56] I have concluded that Mr. Ong must bear some of the legal responsibility for the accident. The law is well-settled that a driver of a vehicle owes a duty to keep a proper lookout and to avoid exercising his or her right of way in the face of danger of which he or she was or ought to have been aware. In some cases the expression used is that that person must avoid dangers of which he or she was aware or which were reasonably apparent. I do not think that the defendant in this case can avoid liability merely because he did not see Ms. Lai before impact. The critical question is whether he ought to have seen her or, in other words, whether her presence was reasonably apparent at a point when Mr. Ong could have taken steps to avoid running her down.
[57] Drivers of motor vehicles are not to be held to a standard of perfection. However I do not think that the possibility that persons may be crossing a highway at a point other than a crosswalk or intersection is so remote that a driver has no duty to take it into account in keeping a lookout. The evidence in this case persuades me that Mr. Ong was not keeping a proper lookout immediately prior to the accident. His own evidence is that he was not looking forward. While it is perfectly permissible and prudent for a driver who is changing lanes to do a shoulder check I think it is also incumbent on such a driver to take the steps necessary to ensure that it is safe for him to do so.
PEDESTRIAN VISIBILITY
In Smaill v Williams, the Plaintiff was struck by a vehicle as he walked along a dirt road. Upon hearing the car approaching, he unsuccessfully tried to get out of the way. ICBC’S lawyer argued that the Plaintiff should be found partially at fault for wearing dark clothing, and for not wearing a reflective vest. The Court rejected such arguments, and awarded damages to the Plaintiff.
[66] The defendants argue that the plaintiff was contributorily negligent to the extent of at least 50% for being on foot in dark clothing and without a flashlight on a dark roadway without street lights.
[67] The question which must be asked in this respect is whether the plaintiff failed to take reasonable care for his own safety and if his failure was one of the causes of the accident: Bradley v. Bath, 2010 BCCA 10 (CanLII), 2010 BCCA 10 at p. 8.
[68] I accept the plaintiff’s evidence that it was dusk but not dark enough for him to require a flashlight and therefore the plaintiff was not contributorily negligent and the defendants’ liability should not be reduced as such.
[69] I note as well, that while carrying a flashlight might be a prudent practice for all pedestrians in dark areas, it is not a universal or even common requirement, no more than it is wise, but not common, for pedestrians to wear reflective traffic vests.
[70] I note, too, that the plaintiff testified he paid heed to the sound of the oncoming car and took several steps off the roadway to be out of its way.
[71] I find the plaintiff did take reasonable care for his own safety by trying to stand well out of the roadway and to avoid the oncoming vehicle.
[72] I find no contributory negligence on the part of the plaintiff.
PEDESTRIAN STEPPING onto ROAD BRIEFLY BEFORE TRYING to RETURN to SIDEWALK
In Whelan v. B.C. Transit, a pedestrian was injured after being struck by a bus, and brought an ICBC claim for injuries. The Plaintiff was walking along a sidewalk, and stepped briefly onto the road in order to get around some people. Before being able to return to the sidewalk, he was struck from behind by the bus. The Court ruled that both the Plaintiff and Defendant were to blame, the Plaintiff for stepping onto the road when it was not safe to do so, and the Defendant for being negligent for not seeing the Defendant, who was there to be seen.
[71] On all the evidence I am satisfied that there was a period of time, of more than transitory length, during which the bus was travelling forward, still in the curb lane, but the focus of Mr. Kobbero’s attention was on his left mirror and the act of merging. It was during this period that Mr. Whelan stepped out on the road and, had Mr. Kobbero’s attention been prudently apportioned between merging and the curb lane in front of him, he could have seen and reacted to the pedestrian in time of avoid a collision. His focus on merging reflected an assumption, which I find was not reasonable in light of his overall awareness of the range of pedestrian hazards, that his forward check earlier in the process was sufficient. However briefly, I conclude that he did fall below his required standard of care.
[72] As was obvious from my earlier comments in this discussion, Mr. Whelan was himself contributorily negligent in this accident. In addition to his disregard for the bus’s right of way and his needless decision to place himself onto the travelled portion of the roadway simply to avoid a moment’s pause in his progress, he made an assumption that was even less grounded in objective fact than Mr. Kobbero’s — that the driver checking his shoulder meant that the bus would have moved into the left lane before it reached the area where he stepped off the sidewalk.
[73] I do not find his use of an iPod to be a meaningful factor in this analysis though. His negligent decision to step onto the road was caused by impatience and a faulty assumption about the actions of the bus driver, and not by any reduction in his ability to hear his surrounding environment.
[75] I would characterize Mr. Kobbero’s lapse of care in conduct as falling more towards the momentary or minor end of the spectrum than towards the extremely careless end. I have found that it was a decision to focus his attention fairly briefly on an admittedly more pressing task, based on the faulty assumption that there were no risks directly ahead of him. This was not the kind of lapse that was inevitably going to cause harm; it required a pedestrian to do one of the foolish things that Mr. Kobbero has been trained to expect in order for that to happen. I conclude that Mr. Kobbero should bear 40% of the liability for this accident.
[76] Mr. Whelan’s actions conversely, demonstrate a higher degree of carelessness. As a pedestrian he was extremely vulnerable to the oncoming bus and there were no safe circumstances under which he could have stepped on the road with it still moving forward in that curb lane. It was in essence a gamble on things playing out as he assumed they would, with a large downside, fortunately only a small part of which materialized here, to being wrong. Accordingly I fix his liability at 60%
