22-year-old jaywalker is found 25% at fault after being struck by a vehicle travelling the wrong way in traffic.

If a jaywalker is hit by a car while crossing the street, who is at fault? Will the jaywalker be found contributorily negligent? What if the vehicle was clearly breaking the rules of the road which the jaywalker was relying on?

In the recent case of Howell v. Machi (2017 BCSC 1806), a jaywalker was struck by a vehicle while crossing East 1st Avenue in Vancouver just west of Commercial Drive. She waited to cross when the eastbound and westbound cars were stopped for a red light at the intersection.  Ms. Howell was not at risk from the stopped traffic eastbound or the stopped traffic westbound at a red light and there was sufficient time for her to cross safely. She had navigated the first two lanes of stopped eastbound traffic but failed to look left before crossing the next two lanes as she did not anticipate any vehicles travelling the opposite direction of traffic. She was violently hit by a pickup truck as it was using the empty oncoming lanes to pass the stopped cars ahead of him to ultimately cross a painted meridian and reach the designated left turning lane up at the intersection. The impact was so significant that scene witnesses were convinced the 22-year-old woman was killed. The driver subsequently took off and fled the scene.

Generally, in assessing moral blameworthiness and contributory negligence, the court looks to the summarized factors in Aberdeen v. Langley (Township) (2007 BCSC 993). In cases involving jaywalking pedestrians or otherwise pedestrians and motor vehicles, this court considered the following facts or circumstances when assessing the Aberdeen factors:

• whether the driver or pedestrian was keeping an adequate look-out for cars or pedestrians, including jaywalking pedestrians;
• whether the driver or pedestrian took reasonable precautions, such as modifying speed in areas where pedestrians might be or looking both ways before proceeding into a crosswalk;
• the speed of the driver compared to the speed limit and the conditions;
• whether the driver obeyed the rules of the road, such as signaling;
• whether the pedestrian or car was “there to be seen” including an assessment of the weather, time of day, state of traffic, use of headlights, light or dark clothing for pedestrians, and other visibility factors;
• the nature of the area where the accident occurred, such as whether it is a busy street or whether there are frequent jaywalkers;
• where the pedestrian crosses, mid-block or nearer to an intersection where any reasonable adult might be expected to attempt to cross;
• whether the pedestrian was wearing headphones; and
• generally, what could reasonably be foreseen by either the driver or pedestrian.

The Honourable Madam Justice MacNaughton made the following judgment on contributory negligence:

[129]     Taking into account the Aberdeen factors, and applying them to the circumstances of this case, I conclude that it is appropriate to find Mr. Machi 75% at fault for the Accident and Ms. Howell 25% at fault. My reasons are as follows.

A summary of her reasons are as follows:

Mr. Machi’s Negligence:

• Mr. Machi did not obey his driver’s suspension in effect that day and stayed off the roads. Further, his driving record revealed three prior “driving while prohibited” suspensions.
• Mr. Machi pulled a reckless maneuver of crossing the yellow line and travelling in the westbound lane, breaching the Motor Vehicle Act, to access the designated left turning lane. Had he waited patiently, Ms. Howell would not have been struck by his vehicle.
• Mr. Machi was travelling at an excessive speed of 40-60 km. Because of the risk of crossing the yellow line, he had an extra responsibility to proceed carefully and keep a watch out for pedestrians and other eastbound traffic trying to access the left turning lane.
• This intersection is commonly crossed by jaywalkers and Mr. Machi ought to have been looking out for pedestrians and jaywalkers.

Ms. Howell’s Negligence:

• Ms. Howell was not crossing in a crosswalk, or at the intersection, in busy traffic during rush hour.
• She was wearing a dark burgundy jacket and grey toque at 6:15 pm in January, which made her less visible. Although there was some illumination from a street light and headlights of traffic.
• Ms. Howell was hidden by an SUV before stepping out to cross the westbound traffic lane and was not “there to be seen” by traffic behind her.
• Ms. Howell did not look left before stepping out across the yellow line and if she had, she would have seen Mr. Machi’s pick up truck as she testified that she was aware of his lights a split second before the crash.
• Ms. Howell, being a driver herself, should have been aware of the possibility that a driver might breach the MVA to access the dedicated left turn lane.

To read about the punitive damages awarded against the driver, check out this post authored by my colleague, Jill Bishop.