Pedestrian accidents

This page discusses assessment of fault in accidents involving pedestrians.

 

Crosswalks need not be “marked” for the pedestrian to have the right of way

According to the definition of “crosswalk” in the Motor Vehicle Act, RSBC 1996 c. 318 there need not be road markings or pedestrian traffic lights for there to be a cross walk at an intersection:

 

"crosswalk" means

(a) a portion of the roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface, or

(b) the portion of a highway at an intersection that is included within the connection of the lateral lines of the sidewalks on the opposite sides of the highway, or within the extension of the lateral lines of the sidewalk on one side of the highway, measured from the curbs, or in the absence of curbs, from the edges of the roadway;

(Motor Vehicle Act, RSBC 1996 c. 318, s. 119(1)).

 

Part (b) of the above definition indicates that the portion of the roadway that is an extension of the sidewalk will be considered a crosswalk even if there are no markings on the road. In other words, if you are walking parallel to the road and along a sidewalk and come to an intersection, so long as you continue walking straight you will be in a crosswalk as you cross the road.

 

Note that that in order to be an official sidewalk the walking area on the side of the road must have been specifically constructed for pedestrians. The Motor Vehicle Act, RSBC 1996 c. 318 includes the following definition for “sidewalk”:

 

"sidewalk" means the area between the curb lines or lateral lines of a roadway and the adjacent property lines improved for the use of pedestrians.

(Motor Vehicle Act, RSBC 1996 c. 318, s. 119(1)).

 

Pedestrian have the right of way when in a crosswalk

 

Section 179(1) of the Motor Vehicle Act, RSBC, 1996, c. 318 states that pedestrians have the right of way when in a crosswalk:

 

Subject to section 180, the driver of a vehicle must yield the right of way to a pedestrian where traffic control signals are not in place or not in operation when the pedestrian is crossing the highway in a crosswalk and the pedestrian is on the half of the highway on which the vehicle is travelling, or is approaching so closely from the other half of the highway that he or she is in danger.

(Motor Vehicle Act, RSBC, 1996, c. 318, s. 179(1)).

 

Section 180 provides that pedestrians do not have the right of way when not in a crosswalk:

 

When a pedestrian is crossing a highway at a point not in a crosswalk, the pedestrian must yield the right of way to a vehicle.

(Motor Vehicle Act, RSBC, 1996, c. 318, s. 180).

 

However, regardless of whether they are in a crosswalk or not, pedestrians, must not step into the roadway into the path of a vehicle that could not reasonably be expected to stop in time:

 

A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way.

(Motor Vehicle Act, RSBC, 1996, c. 318, s. 179(2)).

 

The Motor Vehicle Act, RSBC, 1996, c. 318 also states that drivers must exercise common sense and take reasonable care to avoid pedestrians:

 

Despite sections 178, 179 and 180, a driver of a vehicle must:

(a) exercise due care to avoid colliding with a pedestrian who is on the highway,

(b) give warning by sounding the horn of the vehicle when necessary, and

(c) observe proper precaution on observing a child or apparently confused or incapacitated person on the highway.

(Motor Vehicle Act, RSBC, 1996, c. 318, s. 818).

 

Absent unusual behaviour, pedestrians established in a crosswalk will not likely be found contributorily negligent:

 

[O]nce a pedestrian has safely entered a crosswalk, absent any overt negligence such as running or gesturing that could mislead motorists into thinking they may proceed safely, the pedestrian may assume that the motorists will yield the right-of-way and will share no responsibility if struck in the crosswalk.

(Miksch v. Hambleton, 1990 CanLII 177 (BCSC)).

 

Cases considering pedestrians in crosswalks

Pedestrians have the right of way when a pedestrian traffic control signal is green:

 

132(1) When the word "walk" or an outline of a walking person is exhibited at an intersection by a pedestrian traffic control signal, a pedestrian may proceed across the roadway in the direction of the signal in a marked or unmarked crosswalk and has the right of way over all vehicles in the intersection or any adjacent crosswalk.

(Motor Vehicle Act, RSBC 1996 c. 318, s. 132).

 

Drivers must look out for pedestrians in the crosswalk regardless of whether or not the walk sign is on:

 

In dark, rainy situations, especially on streets where there is known to have considerable pedestrian traffic, Mr. Nix turned left onto Thurlow without paying attention to whether there were pedestrians in the crosswalk or not. While Mr. Nix may have been paying more attention to whether the “walk” or the “wait” pedestrian sign was illuminated rather than whether there were pedestrians in the crosswalk, drivers in similar circumstances must make themselves aware of whether there are pedestrians in the crosswalk, whether or not the “wait” or the “walk” pedestrian sign is illuminated.

 

This is the case because a pedestrian can step into the crosswalk when the “walk” sign is illuminated but still be in the crosswalk while the “wait” pedestrian sign becomes illuminated. As well and although I do not find that to be the case here, it is common for pedestrians to enter crosswalks even though the “wait” pedestrian sign is illuminated. In those circumstances, drivers must be aware of the increased but unfortunate trend of pedestrians to enter crosswalks without regard to whether the “walk” or “wait” pedestrian signs are illuminated. While pedestrians in those circumstances may well be partially to blame for accidents, I find that such is not the case here.

 

(Achilleos v. Nix & Vancouver Taxi, 2000 BCSC 1422 at paras. 18 - 19).

 

Pedestrians in a crosswalk on a green light are not required to wear bright clothing, even on a dark and rainy night:

 

Mr. Nix is 100% liable for the accident which occurred. Ms. Achilleos in no way contributed to causing the accident by wearing dark clothes on that dark January evening. Pedestrians in crosswalks who are proceeding when the “walk” pedestrian sign is illuminated are free to wear whatever colour clothes they feel are appropriate. This is not a case where the lack of lighting and bad weather conditions created a situation where the wearing of dark clothes in any way contributed to causing the accident.

(Achilleos v. Nix & Vancouver Taxi, 2000 BCSC 1422 at para. 20).

 

Pedestrians have the right of way once they are established in a crosswalk:

 

The Supreme Court of Canada has held in two decisions, Petijevich v. Law (1968) 1 D.L.R. (3d) 690, and Coso v. Poulos, (1969) 69 W.W.R. 38, on facts close to those in the case at bar and upon a construction of the same relevant provisions of the Motor Vehicle Act, s-ss. 181 (1) and (2), that once a pedestrian has safely entered a crosswalk, absent any overt negligence such as running or gesturing that could mislead motorists into thinking they may proceed safely, the pedestrian may assume that the motorists will yield the right-of-way and will share no responsibility if struck in the crosswalk.

(Miksch v. Hambleton, 1990 CanLII 177 (BCSC)).

 

Similarly:

 

As I appreciate the result of those cases, it is that where, as here, a pedestrian has lawfully entered a cross-walk, giving him or her the right-of-way, then while that pedestrian is not entitled to make a sudden stop, or accelerate and run, so as to create an unexpected and unavoidable hazard, nevertheless if the pedestrian proceeds at a normal and proper pace, in circumstances where the driver has or should have ample opportunity to see him or her and avoid a collision, then the pedestrian proceeding in that manner, even although he or she may see or ought to have seen approaching traffic, is entitled to assume that such traffic will observe its duty to yield the right-of-way, and the pedestrian is not negligent in proceeding accordingly.

(Cerra v. Bragg, [1980] BCJ No 536 (SC)).

 

Pedestrians NOT in a crosswalk

As noted above, a pedestrian does not have the right of way if crossing a road NOT in a crosswalk. In such circumstances a driver’s obligation to take evasive action arises only when he or she becomes aware or ought to have become aware that the pedestrian is not going to obey the law: Ibaraki v. Bamford, 1996 CanLII 1814 (BCSC).

 

In Addison v. Nelles, 2004 BCCA 623 the defendant driver struck a pedestrian who was not in a crosswalk. The plaintiff was wearing a grey sweatshirt, black track pants and white running shoes. The conditions were cloudy and dark with intermittent light rain and the plaintiff and defendant did not see each other until the moment of impact. The trial judge held that since the plaintiff was not in a crosswalk she did not have the right of way, and that the driver could not reasonably have been expected to see the plaintiff in the circumstances. The plaintiff’s relatively dark clothing was one of several factors that the trial judge considered in concluding that the defendant had not failed to keep a proper lookout. The court found that the plaintiff was moving quickly, that the defendant was not speeding, and that the defendant driver could not be faulted for not seeing the plaintiff earlier.

 

Duty on pedestrians to look out for their own safety

Pedestrians must not step into the roadway into the path of a vehicle that could not reasonably be expected to stop in time:

 

A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way.

(Motor Vehicle Act, RSBC, 1996, c. 318, s. 179(2)).

 

Pedestrians will generally be entirely at fault for an accident if they are not in a crosswalk and step into the roadway in front of a vehicle

 

There is no obligation on a driver to travel below the speed limit to meet unforeseeable emergencies such as a pedestrian who is so careless as to step off a curb directly in front of an oncoming car. Ms. Ibaraki did not present evidence to establish what speed would have avoided the accident. The law does not cast is burden on a driver to travel at the slower speed merely because the road conditions are wet. Ms. Bamford had her vehicle under sufficient control to bring it to a stop quickly after she struck Ms. Ibaraki.

(Ibaraki v. Bamford, 1996 CanLII 1814 at para. 13 (BCSC)).

 

Pedestrians are required to look out for their own safety even when crossing in a crosswalk. In Bell v. Thorner, 2009 BCSC 44 a pedestrian who did not look out for his own safety was found 50% at fault when struck while crossing in an unmarked crosswalk:

 

The plaintiff has not satisfactorily explained why he did not see an approaching vehicle with its headlights illuminated that was there to be seen. It was a dark rainy night. He was dressed in dark clothing. He was crossing a through street at an unmarked uncontrolled intersection. A bus had just passed in front of him, indicating the presence of traffic. Mr. Bell left a place of safety and stepped out into the unmarked crosswalk at the intersection, wearing dark clothing on a dark rainy night, without checking adequately or at all to see that there was no oncoming traffic from his left. There is no other available conclusion, given that the Thorner vehicle, headlights on, was there to be seen, approaching on the roadway. Mr. Bell should have been aware that it would be difficult for a driver on such a night to see a person dressed in dark clothing. It seems obvious that he did not take reasonable care for his own safety. I find that Mr. Bell was contributorily negligent.

(Bell v. Thorner, 2009 BCSC 44 at para. 36).

 

Other cases support the imposition of some duty on a pedestrian even when in a cross-walk:

 

There is a general duty on a pedestrian to act constantly and consistently with due care for his or her own safety when crossing a busy highway, even in a marked crosswalk.

(Loewen v. Bernardi, 1994 CanLII 1147 at para. 15 (BCCA)).

 

Similarly:

 

The reason he gave for not [yielding the right of way] was because he did not see her soon enough and he did not see her sooner because the lighting conditions at the intersection in question were such that the crosswalk area was a blind area to him as he came from the north. His duty in those circumstances was to enter the intersection at such a speed and keeping such a look-out that if a pedestrian should be in the crosswalk he would be able to yield the right-of-way to that pedestrian.

(Petijevich v. Law, [1969] SCR 257 at 264).

 

Young or elderly pedestrians are less likely to be found contributorily negligent:

 

[W]ith respect to the pedestrian, there is authority for the proposition that very young and very old pedestrians are naturally inclined to be more oblivious to the dangers and risks of traffic and when caught in it are predisposed to act impulsively and in some confusion and panic. This predisposition of the young and the elderly is not in itself to be treated as answerable fault and allowance ought to be made for it. In this case the pedestrian is elderly and this characteristic ought to temper the degree of his contributory fault.

(Loewen v. Bernardi, 1994 CanLII 1147 at para. 17 (BCCA))

 

However, in Krause v. McFall, 1997 CanLII 1834 (BCSC) an 84 year old woman struck by a bus was found 50% liable for not keeping a better lookout. The pedestrian left the curb when the “walk” sign was displayed and had her head down as she proceeded with her “quad” walker. The bus had stopped to wait for pedestrians to cross, but then proceeded at 4 miles per hour after thinking that all pedestrians had passed. The plaintiff struck the side of the bus 2-3 ft. behind the front wheel. The driver was not aware of striking the plaintiff until he heard another person banging on the side of the bus, and conceded that he may have been paying more attention to whether the rear of the bus was clearing the curb as he proceeded. The court found the driver and the plaintiff each 50% liable:

 

As she entered the crosswalk on the "Walk" signal, s. 132(1) of the Motor Vehicle Act, RSBC 1996, c. 318 grants her the right of way over all vehicles.

 

Having that right of way, however, did not relieve the plaintiff from the obligation of exercising a degree of care for her own safety. In my opinion she did not exercise the degree of care which she should have in the circumstances.

 

Even though her infirmity in walking necessitated her looking down as she proceeded, it still was incumbent upon her to look up and observe the general traffic situation to ensure that she could proceed safely. She was aware, I find, that the bus from which she had alighted would be making a right hand turn onto Douglas Street since the fact that the bus was going to proceed in a southerly direction was what required her to alight from it and to cross eastward across Douglas Street to catch a bus proceeding in that direction. Had she looked up, as I find she should have done, she would have seen the McFall bus and been able to take steps to avoid walking into the side of it, as I find she did; in failing to do so she was negligent.

 

As to the defendant McFall, as the plaintiff had entered the crosswalk on the "Walk" sign it was incumbent upon him to yield the right of way to her. He failed to do so and hence was also negligent.

 

In the circumstances of this case I consider that the provisions of s. 1(2) of the Negligence Act, RSBC 1996, c. 333 apply and that fault should be apportioned 50 percent to each party.

 

(Krause v. McFall, 1997 CanLII 1834 at paras. 20 – 24 (BCSC)).

 

 

 

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