Legal Resource – Pedestrian Liability
Today’s case involves a pedestrian struck by a vehicle while crossing at an unmarked cross-walk and suffered life altering injuries. Liability is in issue and our article today will enumerate a number of published cases that deal with liability involving pedestrians. The key question is whether a pedestrian who is in front of a stopped car in a crosswalk is deemed to be in a “place of safety?”
The essential facts are not disputed. The accident happened around 6:00 pm when it was still light outside. According to the plaintiff, it had not started raining yet, while the defendant claims light rain had just begun.
The plaintiff entered an unmarked crosswalk after a car stopped to let her cross. She was well into the second lane of travel when she was struck. The exact location of the impact is unclear based on the available evidence, but it was approximately at the halfway point. After the collision, the plaintiff was found at the three-quarter mark across the lane, suggesting she may have crossed more than halfway if she was thrown straight forward. However, other factors might explain her final position. The defendant might have swerved to the right to avoid hitting her, or the plaintiff’s walking momentum could have affected her end location. Since there is no evidence supporting these possibilities, the Court concluded that the plaintiff was likely struck when she was at least halfway across the second lane, as previously mentioned.
The main disagreement is whether the defendant’s car was initially in the same lane as the stopped car and then moved to the other lane, or if it was in the other lane the whole time. The plaintiff and defendant have very different accounts of this.
There is little evidence to support one version over the other. The plaintiff argues that the defendant’s uncertainty about his car’s position suggests that her version is correct. However, the defendant was only unsure about how far he was from the stopped blue car when he first noticed it. He was firm in stating that he stayed in the right lane the whole time.
Given the limited and conflicting evidence from both credible witnesses, I find the defendant’s version more likely. The defendant was driving and knew where his car was, stating he did not change lanes to pass the stopped car. The plaintiff’s view of the defendant’s car position before the collision would have been brief. Unless there is evidence that the defendant was lying, which I do not find, his account is more reliable.
The defendant claims that Ms. N. left a “position of safety” by walking past the stopped car, arguing she knew she was safe in front of a stopped vehicle. However, this argument is based on a misunderstanding of the law. Section 179(2) of the MVA states that a pedestrian must not leave a curb or other place of safety when it is impracticable for a driver to yield. A pedestrian in front of a stopped car in a crosswalk is not in a “place of safety” (Loewen v. Bernardi, 1994). Therefore, the defendant’s argument is incorrect.
The plaintiff left a “place of safety” when she stepped off the curb into the unmarked crosswalk after the blue car had stopped to let her cross. She did so carefully, having looked to her right before entering the crosswalk, and then had the right of way. She was entitled to assume that other approaching traffic would follow the rules and not overtake the stopped car.
In contrast, the defendant violated the law in two ways: he failed to yield the right of way to a pedestrian (s. 179(1)) and attempted to overtake a vehicle that had stopped to let the plaintiff cross the unmarked crosswalk (s. 179(3)).
The court also concluded that Plaintiff had satisfied her general duty to exercise due care for her own safety and that of others. The plaintiff took adequate precautions. The fact that these precautions did not prevent the accident does not mean she was negligent.
Cases Referenced:
Case 1: Dewar v. Finnigan, 2020 BCSC 1721
In Dewar v. Finnigan, a vehicle-pedestrian collision case, the Court found the pedestrian, Mr. Dewar, 35 percent at fault. The incident involved Mr. Dewar jaywalking across a street at night while wearing dark clothing in heavy rain. Despite seeing the approaching vehicle, he assumed it would stop for him, which it did not. The Court noted that Mr. Dewar’s expectation that the vehicle would see him and slow down was unreasonable given the poor visibility conditions (para. 58). The facts of Dewar significantly differ from the current case, making it inapplicable here.
Case 2: Traynor v. Degroot, 2003 BCCA 483
In Traynor v. Degroot, a pedestrian was struck while crossing a busy urban street in an unmarked crosswalk. The street had multiple lanes, requiring the pedestrian to cross three lanes on one side. Despite looking both ways and receiving a signal from a driver in the second lane to proceed, the pedestrian did not look again and was hit by a defendant who overtook the stopped cars. The defendant was held wholly liable for the collision. This case highlights the importance of pedestrian vigilance and the liability of drivers overtaking stopped vehicles.
Case 3: Coso v. Poulos, [1969] S.C.R. 757, 1969 CanLII 95
In Coso v. Poulos, the Supreme Court of Canada addressed contributory negligence in a situation where a pedestrian had the right-of-way. The trial judgment, endorsed by the Supreme Court, stated that the pedestrian was entitled to expect motorists to respect their right-of-way. The pedestrian could reasonably expect that vehicles would observe and respond to the actions of a truck that had stopped for them. The Court concluded that, while extreme vigilance might have avoided the accident, such a level of care was not required, and the defendant was found wholly liable.
Defendant’s Submission: The defendant mentioned the size of the stopped SUV and the plaintiff’s height, suggesting that the SUV might have blocked the view of other drivers. This situation is precisely why section 179(3) requires drivers not to overtake stopped vehicles in such circumstances. Additionally, the defendant implied that the plaintiff had a greater duty to ensure her own safety, but it was concluded that she took reasonable precautions.
Plaintiff’s Hood: The plaintiff testified that her hood came to the side of her face and did not interfere with her ability to see. There was no evidence presented that the hood impaired her vision.
Contributory Negligence: Cases where pedestrians are found contributorily negligent usually involve clear elements of carelessness, such as jaywalking, running without looking, not waiting for traffic to stop, or crossing in poor weather at night while wearing dark clothing. None of these factors applied to the plaintiff in this case.
Conclusion:
Based on the evidence and the circumstances, the defendant was found wholly liable for the collision.
Damages:
Plaintiff’s assessment: $5,645,901.
Defendant’s assessment: $747,239.51.
The Court awarded a total of $1,468,051.
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