A recently reported decision of the B.C. Court of Appeal upheld the trial judge's decision of 70% liability as against the driver and 30% as against the pedestrian plaintiff who was injured in the collision. The facts of this case are interesting in the sense that a marked crosswalk was available to the pedestrian on the north side of intersection, but the pedestrian chose to use the "unmarked crosswalk" on the south side of the intersection. However, halfway across the street, the pedestrian left the relative safety of the unmarked crosswalk and began "jaywalking", in that they walked on a diagonal path towards a bus stop.
[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.
[12] Having found both parties at
fault for the accident, the trial judge apportioned fault 70% against the
defendant, and 30% against the plaintiff.Clearly, the best choice is to use the marked crosswalk, (the excerpt of the definition for a marked crosswalk as defined in the Motor Vehicle Act is seen below under (a)) and the pedestrian did the next best thing, in choosing the unmarked crosswalk (the excerpt of the definition of an unmarked crosswalk as defined in the Motor Vehicle Act is seen below under (b)). Though it may save a few seconds, leaving the relative safety of the unmarked crosswalk can have significant ramifications in sorting out the relative degrees of fault in an ICBC pedestrian motor vehicle accident injury claim.
"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;
It should be noted that case law has held that there is no unmarked crosswalk at a T-intersction, other than the one crossing the vertical line of the T portion.
