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Jaywalkers: when is a driver at fault for hitting them?

Picture this: you’re driving down a curvy, steep hill when you come across a jaywalker in front of you. Instead of crossing, he turns to pick up his dropped cell phone without checking to see if there are vehicles coming. You don’t have much of a chance to react and you strike the pedestrian. In cases like this one, you could find yourself with up to 50% of the liability.

Pedestrians can be pesky performers passing through the streets, and practicing accident-preventative driving precautions can be no picnic. Under the Motor Vehicle Act, people in the position of piloting a vehicle procure plenty of the punishment in the event of a problem on the pavement, especially when it comes to an accident with a jaywalker.

This is what happened in Hmaied v. Wilkinson. The driver was going down a winding hill when he came upon a jaywalker, a teenager from a nearby high school, crossing the street. The pedestrian was jaywalking and dropped his phone on the road. He suddenly turned back to pick it up and was hit by the driver’s truck.

Even though the judge found the jaywalker turning back to get his cell phone caused the accident, the judge still found the driver partly at fault.

For these reasons: the driver was over the speed limit and did not slow down or change lanes when he saw people were on the road. The driver applied his brakes when he realized the pedestrian had turned back, but did not take evasive action, change lanes, or sound the horn. As a result, the judge found both parties were negligent. Another driver and key witness testified that he slowed down upon seeing the pedestrians, but the liable driver had not.

Here’s what the judge said:

“It was clear that the defendant would not have struck the plaintiff if he had immediately slowed down or changed lanes when he, too, could see the boys crossing the road in front of him.”

The judge assessed damages at $73,335 and the driver was on the hook for $36,667.60.


Drivers bear much of the responsibility to dealing with pedestrians

The Motor Vehicle Act says drivers have to take a significant duty of care when sharing the road with pedestrians and jaywalkers. When a pedestrian is crossing the street and not at a crosswalk, they must yield right of way to vehicles. Where traffic control signals are not in place, the driver of a vehicle must yield right of way to pedestrians at crosswalks. But in spite of these regulations, a driver must exercise due care to avoid colliding with pedestrians who are on the roads. Here’s what it says:

181  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.

What this means is even when a pedestrian behaves erratically, you as a driver, bear most of the responsibility to avoid an accident.

In Morrison v. Pankratz, a pedestrian was struck by the tractor part of a tractor trailer at an intersection in Vancouver. The judge concluded from Section 181 of the Motor Vehicle Act that there is “an overriding duty” for drivers to exercise due care to prevent a collision with pedestrians no matter where the pedestrians are located on the road.


How much can a pedestrian get away with?

If it seems like pedestrians have a lot of leeway for dangerous behaviour, that’s because they do.

R. v. Tiessen saw a case where a driver spotted a couple about to cross a street at an intersection with no crosswalk. He slowed down immediately upon seeing the couple. Upon seeing the vehicle, the first pedestrian yielded, thinking the vehicle would not stop for them. He put out his hand out to beckon his partner from going into the street. Seeing this, the driver accelerated to pass them. But nevertheless the second pedestrian continued and she was struck by the driver.

Despite the first pedestrian yielding right of way, the driver was still liable because under section 181 of The Motor Vehicle Act, because the judge said he should have anticipated a pedestrian crossing.

The judge said he did not take enough care to prevent the accident:

“A motorist must have sufficient regard for the possibility of pedestrians crossing in a crosswalk, whether marked or unmarked. What constitutes ‘sufficient regard’ depends upon all of the surrounding circumstances, and is measured objectively against the standard expected of a reasonable man.”


A driver’s best friend is their horn

Car horns are obnoxious. Maybe it’s Canadian politeness, but it’s almost instinctive to look in the direction of a driver hitting their horn and think, “Who is that asshole?” That asshole is the person protecting their liability. People take notice of noises. How many times have you turned to look when someone sounds their horn? If a pedestrian is not paying attention, sounding a car horn is a good way to be a responsible driver.

In many of the cases we looked at, whether or not a horn was sounded was a factor judges notice when making a decision about a case.

In Ptycia v. Swetlishnoff, for example, a pedestrian was walking in a dark suit along a rural highway at night before being hit by a driver. The pedestrian was walking near the centre line. The driver approached from behind and turned his high beams on. The driver pulled towards the right and slowed down. Suddenly, the pedestrian jumped to the right and was hit by the driver.

An action for personal damages was dismissed at lower courts. However, the Supreme Court ruled the driver had an obligation to sound the horn. The pedestrian had not acknowledged that he saw the driver’s vehicle, therefore it was the driver’s responsibility to make sure the pedestrian saw him.

Sounding your horn may not guarantee a judge sides in your favour, but from the cases we’ve looked at, it is one way to protect yourself from getting stuck with the liability as a result of hitting a wayfaring wanderer.

Sharing the road with sidewalk shufflers is no cinch. Sudden, stupid choices can come out of nowhere and sadly stick you with the liability. BC Driving Lawyers’ team has studied these cases and know how to challenge crazy calls made by pedestrians. If you need help, give us a call us today at 604-608-1200.