Two Jaywalking Injury Claims Dismissed by the BC Supreme Court

Adding to this site’s archived case summaries of collisions invovling jaywalking pedestrians, two separate cases involving such a collision recently were dismissed at trial by the BC Supreme Court.
In the first case (Talbot v. Kijanowska) the Plaintiff, who emerged from an alleyway, was attempting to cross a street without the right of way.  The Defendant motorist did not see him in time to take evasive action.  The Plaintiff’s claim was ultimately dismissed with Mr. Justice Greyell providing the following reasons:
[34]         It is acknowledged by Mr. Talbot that he was not crossing the street at a crosswalk, marked or unmarked, at the time he struck or was struck by Ms. Kijanowska’s vehicle. Even if he had been crossing a crosswalk, there is a common law duty on a person in Mr. Talbot’s position to take care of his own safety upon leaving the curb: Kovacova v. Ray, [1998] B.C.J. No. 3309, 48 M.V.R. (3d) 56 (S.C.) at para. 17….
38]         The headlights Mr. Talbot saw upon emerging from the alleyway and upon looking to his right must have come from Ms. Kijanowska’s approaching vehicle. There were no other vehicles on the roadway at the time. Mr. Talbot was unable to explain how or why he did not see Ms. Kijanowska’s vehicle as it approached him after having first observed it about one block away. Mr. Talbot was not able to refute the defence’s theory that he had walked or run into the side of Ms. Kijanowska’s vehicle.
[39]         The only conclusion that I can draw from these unfortunate circumstances is that Mr. Talbot was simply not paying attention or having regard to his own safety when he left the alleyway and walked onto Trutch. He may very well have been distracted by listening to music on his headphones, which were observed lying on the ground next to him.
Accordingly, on the facts as I find them I cannot attribute negligence to the defendant. I conclude the accident of March 27, 2010 was caused solely by the negligence of Mr. Talbot in failing to take care of his own safety by keeping a proper lookout as he left the alleyway and walked onto Trutch and into Ms. Kijanowska’s vehicle.
[40]         The plaintiff’s action is dismissed. In the ordinary course the defendant would be entitled to costs. If there are matters of which I am unaware counsel may speak to the issue.
In the second case, (Pinsent v. Brown) the Plaintiff pedestrian was injured when attempting to cross a street in Vancouver in dark and rainy conditions.  She was not crossing at an intersection or in a crosswalk and “emerged onto the roadway from between parked cars”.  In finding the Plaintiff solely at fault for the resulting collision Madam Justice Ross provided the following reasons:
[32]         The applicable statutory provisions are ss. 179, 180 and 181 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318,…
[34]         The mere fact that the driver did not see the pedestrian before striking him, is not in itself, sufficient to establish that the driver kept an inadequate lookout: Plett v. ICBC (1987), 12 B.C.L.R. (2d) 336 (C.A.). The driver is required to operate his vehicle so that he will be able to avoid striking a pedestrian who is crossing his path in a reasonable manner: Funk v. Carter, 2004 BCSC 866….
[52]         Ms. Brown testified that she was familiar with the area and not distracted. She did not see Ms. Pinsent until Ms. Pinsent stepped out from behind the parked car and stepped into her path. I find that Ms. Brown was exercising reasonable care and attention. I find further that Ms. Pinsent was not visible to Ms. Brown until it was too late to avoid the accident.
[53]         In all of the circumstances I have concluded that the plaintiff has not established that Ms. Brown was travelling at an excessive rate of speed or that she failed to exercise the care and attention of a reasonably prudent driver.
[54]         The accident occurred while Ms. Pinsent was jaywalking. Accordingly, Ms. Brown had the right of way. Ms. Pinsent has failed to establish that after Ms. Brown became aware, or by the exercise of reasonable care should have become aware, of Ms. Pinsent’s own disregard of the law, Ms. Brown had a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself.
[55]         I find that Ms. Brown was not negligent in the manner she operated her vehicle. Ms. Pinsent was the sole cause of this unfortunate accident. In the result the action is dismissed.