BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for July, 2010

How Long is Too Long for an ICBC Claim to go to Trial?

July 30th, 2010

As I’ve previously written, ICBC and other personal injury claims can take a long time prior to settlement or trial.  This is particularly true in cases involving serious injuries where the long term prognosis remains unknown for  a number of years.  As I explained in this video, it is difficult to value a claim until the prognosis is known and it could be risky to settle a claim before this.

Appreciating that injury claims can take a long time, how long is too long?  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this issue.

In this week’s case (Hullenaar v. Wells) the Plaintiff was allegedly injured in an assault in 1997.  He claimed two cars being driven by the defendants boxed him in and then one of the defendants “struck him in the face with a stick causing damage” which led to a serious eye injury.

The Plaintiff sued the alleged assailants and ICBC within the time set out in the Limitation Act.  The personal injury lawsuit dragged on for years.  ICBC grew tired of the matter and brought a court application to dismiss the claim for want of prosecution.  Master Caldwell granted the application and dismissed the lawsuit.  In doing so the Court provided the following comments:

[16]         Once inordinate and inexcusable delay is found, a rebuttable presumption of prejudice to the defendants arises; see Tundra Helicopters. None of the evidence presented to me rebutted that presumption.

[17]         There is some evidence that the plaintiff and the defendant Flynn were examined for discovery in 2002 and 2003 respectively; minimal if any examination of the defendant Wells has occurred. None of the transcripts of the discovery were produced.

[18]         This is a case which will depend largely on the evidence of the parties who were present at the time of the event. The evidence at trial will be the13 – 15 year old recollection evidence of witnesses who had spent a significant part of the evening drinking alcohol at private parties and commercial bars.

[19]         In my view the delay of 13 years, which will be almost 15 years by the time of trial, has prejudiced and will continue to prejudice the defendants in their ability to present a full and proper defence.

[20]         This is an unfortunate case. The plaintiff appears to have suffered significant injury. It is hard to imagine why the matter was not moved forward with anything approaching reasonable speed, however the plaintiff alone is responsible for the delay. Based upon the evidence presented, the interests of justice do not mitigate in favour of allowing the plaintiff to continue his action, rather they favour the dismissal sought by the defendant/third party.

[21]         The action is dismissed for want of prosecution. The applicant ICBC is entitled to its costs of this application as sought; no other party sought or is entitled to its costs.

While patience is important in the settlement of personal injury claims this case demonstrates that even with very serious injuries there is such as thing as “too long”.

My Interview With The Rutherford Show: Damages For Charter Breaches

July 29th, 2010

Earlier this week I was asked to participate in a radio interview with Dave Rutherford where we discussed the recent Supreme Court of Canada Decision Vancouver v. Ward.

You can click here for some background information.  In short the Supreme Court of Canada has acknowledged that Canadian Judges can award financial damages if the Government violates an individuals rights under the Canadian Charter of Rights and Freedoms.  This decision will undoubtedly have a significant effect on the Canadian Legal landscape and I was pleased to have an opportunity to discuss this with Dave and his listeners in Alberta.

A quick correction is warranted as well.  Early in the interview I speculate that criminal lawyers could potentially ask for the remedy of damage awards in the course of a criminal trial but later in the interview I point out that this is in fact not a possibility.  The Supreme Court of Canada specifically notes that “Provincial criminal courts are not so empowered and thus do not have the power to award damages under s. 24(1).”  For individuals to seek damages for breach of Charter rights the appropriate way to put the matter before the Courts is through a conventional lawsuit.

You can click on the following link to listen to the interview in full:


As always, any feedback is welcome!

BC Court of Appeal Clarifies Law of Compensation for Injuries With Multiple Causes

July 29th, 2010

Very important reasons for judgement were released today by the BC Court of Appeal making it easier for a Plaintiff involved in multiple not at fault traumas to be properly compensated for their injuries.

In today’s case (Bradley v. Groves) the Plaintiff was injured in 2 BC motor vehicle collisions.  The first happened in 2006.  She was not at fault.  She suffered from various soft tissue injuries which were recovering (but not recovered) when she was involved in a second collision in 2008.  She was faultless for this crash which aggravated the soft tissue injuries from the first crash.

The Plaintiff sued the motorist in the first crash.  The trial judge found that the injuries were “indivisible” and that the two crashes “were both necessary causes of the indivisible injuries“.  The trial judge valued the Plaintiff’s non-pecuniary damages of $30,000 for the entirety of her injury.  The Plaintiff was awarded damages for the whole amount with the trial judge stating that since the Plaintiff was not at fault for either event and since her injuries were indivisible this was the correct approach.  (you can click here to read the trial judgement)

The Defendant appealed arguing that the judge should have apportioned damages between the two crashes and only awarded the Plaintiff damages for the crash that she was suing for.  The Court of Appeal disagreed and upheld the trial judgment.  In doing so the Court clarified this important area of law which will now make it easier for not at fault Plaintiff’s injured through multiple events to be properly compensated for their loss.  The BC High Court provided the following useful reasons:

[32]        There can be no question that Athey requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]        The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility: Longrequires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]        That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[35]        This is not a case of this Court overturning itself, because aspects of Long v. Thiessen were necessarily overruled by the Supreme Court of Canada’s decisions in Athey,E.D.G., and Blackwater.  Other courts have also come to this same conclusion: see Misko v. Doe, 2007 ONCA 660, 286 D.L.R. (4th) 304 at para. 17.

[36]        It may be that this represents an extension of pecuniary liability for consecutive or concurrent tortfeasors who contribute to an indivisible injury.  We do not think it can be said that the Supreme Court of Canada was unmindful of that consequence.  Moreover, apportionment legislation can potentially remedy injustice to defendants by letting them claim contribution and indemnity as against one another.

[37]        We are also unable to accept the appellant’s submission that “aggravation” and “indivisibility” are qualitatively different, and require different legal approaches.  If a trial judge finds on the facts of a particular case that subsequent tortious action has merged with prior tortious action to create an injury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable.  That one tort made worse what another tort created does not automatically implicate a thin or crumbling skull approach (as in Blackwater), if the injuries cannot be distinguished from one another on the facts.  Those doctrines deal with finding the plaintiff’s original position, not with apportioning liability.  The first accident remains a cause of the entire indivisible injury suffered by the plaintiff under the “but for” approach to causation endorsed by the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.  As noted by McLachlin C.J.C. in that case, showing that there are multiple causes for an injury will not excuse any particular tortfeasor found to have caused an injury on a “but-for” test, as “there is more than one potential cause in virtually all litigated cases of negligence” (at para. 19).  It may be that in some cases, earlier injury and later injury to the same region of the body are divisible.  While it will lie for the trial judge to decide in the circumstances of each case, it is difficult to see how the worsening of a single injury could be divided up.

Why a Driver Isn't Always at Fault For Losing Control

July 28th, 2010

If a driver loses control of their vehicle resulting in a collision causing you injury they will always be found negligent in a personal injury lawsuit, right?  Not necessarily.  Reasons for judgement were released today by the BC Supreme Court demonstrating this.

In today’s case (Geiger v. Schmidt) the Plaintiff sued for compensation as a result of injuries she sustained in two BC motor vehicle collisions.  In the first crash the Plaintiff was a passenger in her own vehicle.    The vehicle was travelling on Highway 99 just South of Vancouver.  The posted speed limit was 100 kmph.  The road conditions were poor due to winter weather.  The driver slowed to 70 kmph to take this into account.  The Plaintiff asked the driver to slow further and put the vehicle into four-wheel drive.  Before the driver did so the “back end of the vehicle slid.  It spun 360 degrees, collided with the median, bounced off it, went into another spin and then struck it a second time“.

The Plaintiff was injured in this crash and sued for damages.  The driver argued that he was not at fault and did nothing careless.  Mr. Justice Brown agreed and dismissed the lawsuit.  In doing so he provided the following analysis:

[44]         In my view, given the fact the defendant was attuned to the conditions he was facing and had responded to them by lowering his speed by almost one-third, the negligence question in this case comes down to deciding whether he failed to exercise all reasonable care because he failed to comply with the plaintiff’s suggestion by lowering his speed and transferring the driveline to four wheel drive before he lost control. In other words, did exercising all reasonable precautions encompass disregarding his own assessment and complying with the plaintiff’s suggestion?

[45]         In some circumstances, reasonable drivers assessing driving conditions would consider the suggestions of passengers, especially when the driver is inexperienced or less familiar with the road then the passenger. In many cases, the passenger’s recommendation will correspond with the most objectively reasonable precaution.

[46]         However, the driver is ultimately responsible for assessing the objective conditions and responding in a reasonable way. In the circumstances of this case, I find the defendant’s failure to follow the plaintiff’s suggestion to slow down and transfer to four-wheel drive is not sufficient to satisfy the plaintiff’s burden of establishing the defendant was negligent.

[47]         Further, I heard no evidence of what speed would be low enough in the conditions the defendant was facing to prevent a loss of control and the spin outs that followed. There was no evidence to show that, had the defendant switched into four-wheel drive or reduced his speed, he could have avoided the accident. A judge can take judicial notice of the natural correlation between higher speed and decreased traction; but such common knowledge does not licence a leap from that to a conclusion the defendant likely would have avoided the accident if the plaintiff had agreed with the plaintiff and lowered his speed.

[48]         This is not a case of a driver ignoring passenger pleas to slow down while driving at a speed all reasonably cautious drivers would consider unsafe in the circumstances.

[49]         The standard of care is not perfection. There is no evidence the defendant was inattentive or indifferent to road conditions. His decision to delay transferring to four wheel drive until he felt ready doing so was not unreasonable. The vehicle was equipped with snow tires. The temperature was around 4 degrees centigrade. The defendant was exercising reasonable caution by driving a full 30 kph below the posted speed limit.

[50]         As in Nason, I find insufficient evidence to show the defendant in these circumstances was negligent: at best, the weight of the evidence hangs evenly in the balance. I find the plaintiff has failed to satisfy the burden of proof and so I must dismiss the plaintiff’s claim against the defendant.

Prior to dismissing the lawsuit Mr. Justice Brown canvassed several recent authorities which address fault in collisions where a driver loses control and the case is worth reviewing in full for anyone interested in this area of law.  You can also click here to read my archived posts addressing fault for BC crashes where a driver loses control due to road conditions or other hazards.

More on ICBC Injury Claims and "Sufficient Reason" to Sue in Supreme Court

July 27th, 2010

If a Plaintiff sues in Supreme Court but is awarded damages of $25,000 or less (the current financial limit of the BC Small Claims Court) the Plaintiff is not entitled to Costs unless they had “sufficient reason” for suing in the BC Supreme Court.

It is becoming reasonably well established that a Plaintiff has sufficient reason to sue in Supreme Court when the Defendant is insured with ICBC.  The reason being that the Defendant will likely be represented by a lawyer paid for by ICBC whether the claim is filed in Small Claims Court or the Supreme Court.  In these circumstances it is reasonable for a plaintiff to hire a lawyer to balance the playing field.  Since the Supreme Court allows costs orders to offset some of the legal fees our Courts have held on a few recent occasions that this creates a ‘suffient reason’ for Plaintiff’s to bring modest claims to trial in the Supreme Court.  Reasons for judgement were released today demonstrating this.

In today’s case (Zale v. Colwell) the Plaintiff was injured in a BC motor vehicle collision.  She sued in the Supreme Court.  At trial she was awarded just over $10,000 for injuries and losses.  Mr. Justice Harvey went on to award the Plaintiff costs despite the fact that the Small Claims Court could have heard the case.  The Court provided the following reasons:

[7]             None of the factors identified in Spencer have application here. The matter was not factually complex; it proceeded by judge alone; liability was admitted, obviating the need for examination for discovery by the plaintiff; the defendant resided within the jurisdiction; and, the matter did not proceed by way of summary trial.

[8]             As was noted in Spencer, the desire of the plaintiff to have counsel, alone, is not a sufficient reason, of itself, to depart from the underlying proposition stated in R. 57(10). In any event, the plaintiff was represented when the action was originally commenced in Provincial Court in 2006.

[9]             Lastly, the plaintiff says costs should be awarded owing to the fact the defendant, in effect ICBC, is an institutional litigant with rigid policies in low velocity collision claims such as this.

[10]         The defendant, while admitting liability, put the plaintiff to the strict proof of any damages whatsoever arising from the accident. That position did not change throughout the trial process. As in Spencer, I am left with the conclusion that but for the trial process, the plaintiff would be left without a remedy…

[13]         In each of the above three decisions, the primary reason for awarding the plaintiff costs, in circumstances not unlike these facing the plaintiff here, was the consideration that given the need to retain counsel to battle an institutional defendant,  a reasonable consideration in determining the forum is the matter of indemnity for the costs of counsel.

[14]         Recognizing that the onus rests on the plaintiff to demonstrate sufficient reason to have raised the matter from Provincial Court to Supreme Court, I am not persuaded that the distinguishing factor noted by the defendant, that counsel was retained (albeit not the same counsel) for the Provincial Court proceeding, is sufficient to deprive the plaintiff of the costs of the proceeding under R. 66.

[15]         I conclude that in the circumstances, it was ultimately reasonable for the plaintiff to make the decision to have the matter heard in Supreme Court.

[16]         Accordingly, the plaintiff will have her costs pursuant to R. 66(29)(b).

I should point out that today’s case relied on BC Supreme Court Rule 57(10).  This rule has now been repealed and replaced with Rule 14-1(10) which reads identically to Rule 57(10) so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants under our new rules.  I should also point out that the BC Court of Appeal is expected to address the issue of sufficient reason for suing in the BC Supreme Court and provide further clarity and certainty to this area of the law.

My Interview with ILSTV: Damages for Charter Breaches

July 27th, 2010

In what has proven a very popular topic, I’ve had the opportunity to discuss the implications of the Vancouver v. Ward case with News1130, The Dave Rutherford Show, and now with ILSTV.

I’d like to thank Julie Hawrishok of ILSCorp for providing me with the following clip:

Show Me the Money 4: 2009 ICBC Lawyer and Doctor Billings Released

July 24th, 2010

It’s that time of year again, ICBC has released their Statements and Schedules of Financial Information for 2009. (You can click here, here and here to read my previous 3 installments addressing this topic)

This annual report contains a lot of interesting information.  None more so than the billings of “Suppliers of Goods and Services“.  Some of the Suppliers of Goods and Services are Lawyers and Doctors.  If you browse through this annual report you can see just how much any given lawfirm or doctor has been paid by ICBC in the 2009 Calendar Year.

ICBC routinely uses the services of a handful of doctors.  A quick look through this data reveals just how profitable the “Independent Medical Examination” business really can be.

Another provider of ’services’ revealed in these financial statements are law firms who do ICBC defence work. I have previously posted that some lawfirms and lawyers work both sides of the fence, that is on some cases they work for ICBC and in other cases they work for injured plaintiff’s suing someone insured by ICBC. According to the BC Law Society there is nothing wrong with this but these lawyers need to let their clients know if they signed the ICBC defence contract (known as the SAA) which restricts the lawyers ability to make claims against ICBC.  This is required so clients can make an informed decision when choosing to hire their lawyer.

If you hired a lawyer to advance your ICBC injury claim and are curious if your lawyer also works for ICBC you can check these annual reports to see just how much money any given lawfirm is paid by ICBC in each calendar year.

Supreme Court of Canada Confirms Damages Can Be Awarded For Charter Breaches

July 23rd, 2010

In what is one of the most important legal decisions in the 28 year history of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada released reasons for judgement confirming that Canadian Courts have the right to award financial damages for state actions that violate individuals rights under the Charter.

This decision (Vancouver v. Ward) creates a brand new right to ‘constitutional damages’ which is distinct from typical lawsuits for compensation.   The Court held that this legal remedy is important to ensure that Charter Rights are not “whittled away by attrition“.

In today’s case the Plaintiff was subjected to an unlawful strip search in 2002.  At trial he was awarded $5,000 for breach of his rights under the Charter.  The BC Court of Appeal upheld this award.  (You can click here for more background on the judicial history) The Supreme Court of Canada concluded that this was appropriate and set out the legal framework for when damages can be awarded for Charter breaches and the factors the Court should consider in determining the amount of damages.

The Chief Justice of the Supreme Court of Canada summarized the test of when damages can be awarded as follows:

[4] I conclude that damages may be awarded for Charter breach under s. 24(1) where appropriate and just.  The first step in the inquiry is to establish that a Charter right has been breached.  The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches.  At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust.  The final step is to assess the quantum of the damages.

The Court then provide the following summary of the factors Courts should consider in arriving at a dollar figure for Charter breaches:

[57] To sum up, the amount of damages must reflect what is required to functionally serve the objects of compensation, vindication of the right and deterrence of future breaches, insofar as they are engaged in a particular case, having regard to the impact of the breach on the claimant and the seriousness of the state conduct.  The award must be appropriate and just from the perspective of the claimant and the state.

I strongly urge everyone to read today’s case in full as the Court sets out extensive reasons of the justification for damage awards under the Charter, considerations when these are just, factors for when these should not be awarded, guiding principles in arriving at quantum and guidance on the form and procedure of these lawsuits.

$135,000 Non-Pecuniary Damages Awarded for Multiple Orthopaedic Injuries

July 22nd, 2010

(Illustrations provided courtesy of Artery Studios Ltd.)

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $426,000 in total compensation for injuries and losses as a result of a 2007 motor vehicle collision.

Fault for the collision was hotly contested in today’s case (Hildebrand v. Musseau) .   The Defendant was operating a pick-up truck.   The Plaintiff was operating a dirt bike.  The vehicles approached each other from opposite directions.  Both motorists gave evidence that the other was on the wrong side of the road as they approached.  Ultimately the Court concluded that the Defendant was in the Plaintiff’s lane of travel as the vehicles approached each other.  The Plaintiff took evasive measures but was unsuccessful and was struck by the Defendant’s truck.   The Defendant was found 90% at fault for the crash.

The Plaintiff suffered serious injuries including a fractured right ankle and right wrist.  Both of these required surgery.  The Plaintiff also fractured his left femur which required splinting along with various soft tissue injuries.  Some of the injuries, particularly the injury to the knee and ankle, were expected to pose long term problems for the Plaintiff.  In awarding $135,000 for the Plaintiff’ non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Hyslop provided the following reasons:

[216]     The plaintiff is a young man who suffered three different broken bones in his body. He lost eight and a half months of work convalescing. He had surgery to repair his broken bones and eventually had further surgery in which to remove plates and screws. He was initially confined to a wheelchair, then walked with crutches and eventually a cane. Many of his recreational activities were curtailed, some of which have been curtailed permanently, particularly if they relate to high impact-type activities. He has lost some range of motion in his right ankle which is unlikely to improve. The prognosis for osteoarthritis in the right ankle in the long-term is moderate. His injuries have prevented him in part from pursuing some renovations he wished to do in his home. The plaintiff’s injuries, particularly his right ankle and right knee, affect his ability to carry heavy loads, climb stairs and ladders, squat or kneel for extended periods of time.

[217]     The plaintiff, at the time of the accident, was aged 21 and had recently been certified as a journeyman auto body repair technician, a trade to which he appears to be well-suited.

[218]     He has a permanent disability as it relates to his ankle which prevents him from pursuing activities that he pursued prior to the accident and he may have wished to pursue in the future.

[219]     I assess non-pecuniary damages in the amount of $135,000.00.

Motorist Found 40% At Fault for Striking Jay-Walking Teenager

July 21st, 2010

(Update: The below decision was upheld by the BC Court of Appeal in reasons for judgement dated August 3, 2011)

As I’ve previously written, motorists travelling with the right of way can still be found at fault for a collision in British Columbia.  If you have the right of way but know or ought to know that someone is not yielding you can be found at fault if you fail to take reasonable steps to avoid a collision in these circumstances.  This principle was well demonstrated in reasons for judgement released today by the BC Supreme Court, Kelowna Registry.

In today’s case (Walter v. Plummer) the 16 year old pedestrian Plaintiff was struck by the Defendant’s motorcycle.  The Plaintiff was jaywalking at the time of the collision.  The Plaintiff crossed in front of a stopped tractor trailer and stepped into the Defendant’s lane of travel.  This made it difficult to see the Plaintiff.  The Defendant was not speeding.  Despite this the Defendant was found partially at fault for the crash for failing to take reasonable care in all of the circumstances leading up to the crash.

The Court concluded that the Defendant was careless because she ought to have anticipated jaywalkers at the time and could have taken greater care in operating her motorcycle.  Mr. Justice Barrow provided the following useful summary in explaining why both parties were at fault for this crash:

[25] I am satisfied that Mr. Walter was crossing the street at a casual walking pace, neither particularly fast nor particularly slow. Ms. Plummer was travelling approximately one to two feet to the left of the mid-point of the southbound right turn lane. She saw Mr. Walter for the first time when he emerged from in front of the tractor-trailer truck and walked into her path of travel.

[26]         Based on Dr. Toor’s and Ms. Plummer’s evidence, I am satisfied that the point of impact between Mr. Walter and Ms. Plummer’s motorcycle was two or three feet into the right turn lane and that Mr. Walter was visible to Ms. Plummer for perhaps two more feet as he passed from in front of the tractor-trailer truck to the boundary of the right turn lane…

[41]         There are several significant features of the circumstances facing Ms. Plummer that serve to elevate the degree of care required.

[42]         The first is the reasonably foreseeable risk of jaywalking pedestrians. The defendant was aware that students frequently jaywalked across Rutland Road. Ms. White said that, in her experience, there were many jaywalking students in that area shortly after the schools are dismissed. Further, the risk was not just of any jaywalking pedestrians but of students. The fact that the foreseeable pedestrians would be students is significant because young people may take less care for their own safety than adults.

[43]         A second and related circumstance is that Ms. Plummer knew that the northbound lane was empty and that the vehicles in the left turn and through southbound lanes were stopped. The prospect of students jaywalking in that situation is higher than it would be if there was traffic moving in both directions.

[44]         Finally, and significantly, Ms. Plummer was passing a tractor-trailer unit stopped in the through lane. That truck entirely obstructed her view of the through lane in front of it. If there were pedestrians attempting to cross, it would have been apparent to her that she would not be able to see them.

[45]         All of these features serve elevate the degree of caution necessary to meet the standard of care. To proceed at 40 kilometres per hour passing a stationary truck in an area known to be frequented by jaywalking students is negligent. It is a situation in which a driver ought to have been proceeding in an “alerted” state, to borrow from the categories used in the perception-response studies.

[46]         As to Mr. Walter, he owed a duty to take reasonable care for his own safety. He breached that duty in a number of ways. He crossed other than at a marked crosswalk, and thus contrary to the statutory obligations he was under. Further, just as it should have been apparent to Ms. Plummer that she could not see crossing pedestrians, it ought to have been apparent to Mr. Walter that he could not see oncoming traffic. Finally, and most significantly, unlike Ms. Plummer who was looking where she was going, Mr. Walter did not look into the oncoming lane at all to determine if he could safely cross. His negligence is greater than that of Ms. Plummer. I apportion liability 60 percent to Mr. Walter and 40 percent to Ms. Plummer.