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Liability between a motorist and pedestrian – and cell phone use

I had the right of way, walking across a street within an unmarked crosswalk.  I had made it more than half way across the street, and was there to be seen by an oncoming motorist.  The motorist wasn’t paying attention and ran into me.  Surely, I am not at fault, am I?  What if I was talking on my cell phone at the time?

In the recent case of  Olson v. Farran (2016 BCSC 125) the 26 year old plaintiff was walking to work when she was struck by a motorist within an unmarked crosswalk.

The court accepted the plaintiff’s evidence that she had stopped at the intersection, waited for one or more vehicles to pass through, and then proceeded to walk in plain view of the defendant:

[107]     I accept the evidence of the plaintiff that she stopped at the edge of the intersection and find that she waited there for approximately 30 seconds before stepping into the crosswalk.  At approximately 8:40 on a weekday morning, it is consistent with the probabilities of the situation that Ms. Olson waited while one or more vehicles passed through the intersection, ahead of the defendant’s vehicle.  As Ms. Farran approached the roundabout, the plaintiff was at the intersection and in plain view.  I find that Ms. Olson did not suddenly run or dart out into the roadway.

The court also found that the motorist failed to notice the plaintiff because she had not been paying attention:

[108]     The defendant has provided no satisfactory explanation for why she did not see the plaintiff until a split second before the accident.  Ms. Farran was pressed for time to get to her work in Burnaby.  I find that the defendant’s attention was focused on the vehicles entering the roundabout ahead of her.  Despite her unobstructed view of the intersection she failed to see the plaintiff.  I infer that the defendant did not see the plaintiff until a moment before the collision because she was not paying attention.

The court concluded that the motorist was negligent:

[113]     I find that by entering the intersection without taking due care and attention for pedestrians crossing her path, and failing to yield the right of way to the plaintiff, the defendant was negligent.

That wasn’t the end of the analysis, though.   The court distinguished this case from two others where pedestrians were not faulted for walking in front of traffic.  In the one case, the pedestrian observed the vehicle slowing and reasonably assumed the motorist would stop.  In the other, there had been a stop sign before the crosswalk and the pedestrian reasonably expected the motorist to obey the stop sign.  Ms. Olson, in comparison, had not made a reasonable assessment of whether she was putting her own safety at risk before she stepped into the crosswalk.  It was also noted that she was distracted by her hands-free cell phone conversation with her mother.  Ms. Olson was found contributorily negligent, even though she had the right of way:

[114]     For her part, the plaintiff saw the defendant’s vehicle when it was about three car lengths from the roundabout as it approached from her right on Nelson Street.  Ms. Olson was not able to estimate the speed of Ms. Farran’s vehicle at that point.  Without some sense of the speed of the defendant’s vehicle, which was only three car lengths from the roundabout when she observed it, Ms. Olson was in no position to make a reasonable assessment of whether she was putting her own safety at risk before she stepped into the crosswalk.  The plaintiff was also engaged in a conversation with her mother, which continued until she was struck by the defendant’s vehicle.  I find it is more probable than not that Ms. Olson was distracted by her telephone conversation.  After she left the curb she was unaware of the location of the defendant’s vehicle until a moment before it struck her.

[115]     In my view, this case is distinguishable from Cairney, where the pedestrian observed the defendant’s vehicle slowing down and reasonably assumed the defendant would stop, and Gulati, where the plaintiff reasonably anticipated the defendant’s vehicle would stop at a stop sign.

[116]     I find the plaintiff was contributorily negligent in entering the unmarked crosswalk without first checking adequately to determine whether the defendant’s oncoming vehicle presented a risk to her own safety.

The court then determined how liability should be split, and found 75% against the motorist:

[117]     The defendant was familiar with the intersection and was aware that pedestrians might cross the roadway.  She failed to maintain an adequate lookout for the plaintiff who was there to be seen.  Ms. Farran bears the greater fault for the accident.  However, Ms. Olson failed to take reasonable care for her own safety by entering the crosswalk without keeping an adequate watch for the defendant’s oncoming vehicle.  In these circumstances, I divide liability by apportioning 75% of the fault to the defendant and 25% to the plaintiff.

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