It’s that time of year again in BC – the clocks have been turned back and, for most of us, it’s dark on our commute home. It’s also raining frequently, and soon to be snowing, depending on where you live. This impacts both visibility and braking. For pedestrians, this can be a hazardous time of year. So far this year, 9 pedestrians have died after being involved in collisions on the road in Vancouver prompting news stories providing pedestrian safety tips.
I was reminded that pedestrians bear some responsibility for their own safety by one of Rick Mercer’s rants in which he blasts pedestrians crossing the road that are slow, inattentive, and dressed in black. Rick is right – it’s better to be safe than sorry, and the best way to avoid being hit by a motor vehicle is to pay attention while you’re walking and wear high visibility clothing. But what are the legal rights of pedestrians that are crossing the road?
We recently went to trial on behalf of a pedestrian that was hit while crossing the street on a marked crosswalk. ICBC admitted that its insured driver was negligent but alleged contributory negligence on behalf of our client. In other words, ICBC alleged that our client’s own negligence was partly to blame for the accident.
Responsibilities of Drivers vs. Pedestrians in Crosswalks
The BC (Motor Vehicle) Act sets out the responsibilities of both driver and pedestrian when the latter is in a crosswalk. Although the driver is required to yield the right of way, a pedestrian must not step into the path of a vehicle if the vehicle is “so close” that it is impracticable for the driver to yield the right of way.
In legal terms, the ‘burden of proof’ is on the defendant driver to prove that the pedestrian (plaintiff) was negligent. The driver has to prove that the pedestrian ought to have known that the driver was not going to yield the right of way, and at the point that they became aware of the danger, they could have avoided the accident. Put another way, the driver has to prove that:
- taking distance into consideration, the pedestrian should have realized from the speed of the approaching vehicle that it was not going to yield;
- it would have been possible for a pedestrian to avoid being impacted; and
- a reasonable person in those circumstances should have taken evasive action to avoid the impact.
Having said that, a pedestrian is not required to exercise ‘extreme vigilance’ to avoid an accident. A pedestrian who waits for traffic to stop and proceeds at a normal pace across the crosswalk is entitled to assume that approaching drivers will obey the law and yield the right of way. She is not obliged to keep a constant eye on stopped vehicles in case they accelerate into the crosswalk, nor is she required to keep a distance from every vehicle in her immediate vicinity sufficient to allow her to react if a vehicle suddenly becomes a danger.
What Constitutes Pedestrian “Inattentiveness”
As a pedestrian, the fact you have your headphones in doesn’t necessarily mean you are being inattentive. However, the circumstances may be different if you are ‘glued to your phone’. Even though you have the right of way, you need to be aware of what is going on around you. If your inattention prevents you from noticing that a car is not going to stop, and from taking steps to avoid an accident, the court might find that you were partly responsible for the accident.
Traffic laws are in place to protect pedestrians, but the first line of defence is to protect yourself by being smart about the clothes you wear and paying close attention to vehicles on the road.
What if you are inattentive?
Even if you share some of the responsibility for an accident that causes you injury, you are still entitled to compensation. If you are a pedestrian and you have been injured in a crosswalk or otherwise, you should speak to a lawyer. You are welcome to contact us and we will listen to your case and outline your options.