BC Court of Appeal Discusses Duties of Motorists and Pedestrians in a Parking Lot
Reasons for judgement were released today by the BC Court of Appeal addressing the legal duties of both motorists and pedestrians while in a parking lot.
In today’s case (Russell v. Parks) the Plaintiff pedestrian was walking in a parking lot and was “about 6 feet into a a marked parking stall” when the Defendant backed his vehicle into the same stall and struck the Plaintiff. At trial the the Court found the pedestrian was 2/3 at fault for the incident. In overturning this to a 25/75 split in the pedestrians favour the BC Court of Appeal provided the following reasons addressing the parties duties:
 In my respectful opinion, the trial judge erred in law by applying s. 179(2), rather than ss. 180 and 181, to the circumstances of this case. Madam Justice Rowles’ analysis in Loewen v. Bernardi, and the wording of s. 179, when viewed as a whole, describe a code of conduct for vehicles and pedestrians who are approaching or entering a crosswalk. Where, as in this case, there are no crosswalks, ss. 180 and 181 are more appropriate. Section 180 imposes a duty on the pedestrian to yield the right of way to a vehicle when crossing a highway at a point not in a crosswalk. Under the Motor Vehicle Act, a parking lot falls within the definition of “highway”. Mr. Russell was crossing through a parking lot and it is clear that he was not using a crosswalk, therefore s. 180 applies. Section 181 imposes a corresponding duty on a driver “to exercise due care to avoid colliding with a pedestrian on a highway.” The standard of “due care” will obviously be higher in a parking lot than, for example, on a freeway, because one can expect pedestrians to be using that space. This approach is consistent with Bohati v. Jewell (1996) 84 B.C.A.C. 161, another “parking lot” case, where this court relied on what are now ss. 180 and 181 to apportion liability. Sections 180 and 181, rather than s. 179(2), have also been relied upon in lower court decisions involving parking lots: see Gray v. Ellis, 2006 BCSC 1808, and Davidson v. Donnelly,  B.C.J. No. 800 (S.C.).
 Even if Mr. Russell did leave a place of safety, the trial judge erred in his interpretation of s. 179(2) by considering only part of it. This provision has two components: a pedestrian must leave a place of safetyand this must be done so suddenly that it is “impracticable for the driver to yield the right of way.” The trial judge’s findings clearly indicate it was not impracticable for Mr. Parks to yield the right of way. He found that Mr. Parks could have stopped and avoided the accident had he been keeping a proper lookout (para. 34). In my view, s. 179(2) contemplates a situation where the pedestrian steps onto a path designated for pedestrians (such as a crosswalk) but in doing so steps immediately into the path of a moving vehicle that could not practicably yield the right of way in time. According to the trial judge’s findings, this does not describe the situation in which Mr. Russell and Mr. Parks found themselves.
 Mr. Russell argues that if he was not in violation of the statutory obligation pursuant to s. 179(2), he is not contributorily liable. I would not disturb the trial judge’s finding that he breached his common law (and statutory) duty to exercise due care and that this contributed to his injuries. The trial judge found that Mr. Russell was looking down as he walked into the parking stall, and as a result, failed to take reasonable care for his own safety. There is no basis on which to interfere with this conclusion.
 The next question is whether the apportionment of liability was grossly disproportionate to what this court would have ordered (see Moses, supra, para. 33). Each assessment will turn on the facts of the case. In this instance, Mr. Russell was looking down as he stepped over the barrier, and continued to look down as he took a few steps into the parking stall. Mr. Parks was aware that there were pedestrians in the area, entered the lot from a direction that required him to swing wide to enter a parking stall, changed his mind at the last minute in terms of which stall he would take, shoulder checked numerous times, and ended up driving forward when he was looking backward, striking Mr. Russell. Clearly both were at fault. However, finding that Mr. Russell was two-thirds responsible for the accident, in my respectful view, is grossly disproportionate to his fault. The trial judge was clearly influenced by the finding that Mr. Russell had breached his statutory duty under s. 179(2) of the Motor Vehicle Act by leaving a “place of safety”. As I have explained above, this finding was in error. Although Mr. Russell was looking down as he walked, he did not step off a curb or shoulder into moving traffic (which is what s. 179(2) is designed to prevent) and his fault should not be assessed as if he did.
 In Loewen v. Bernardi, this court reduced a finding of liability against the pedestrian plaintiff from 25% to 10% on the basis that the plaintiff’s contribution was minor. In that case, the plaintiff was half-way through a marked crosswalk when he was struck by a vehicle. I would not characterize Mr. Russell’s degree of fault as “minor”. On the other hand, it was not the main cause of the accident. The main cause was the fact that Mr. Parks drove forward while he was looking backward. I would allow the appeal on this ground and apportion liability on the basis of 75% against Mr. Parks and 25% against Mr. Russell.