Tag: Jaywalking Accidents

Pedestrian 70% at Fault For Jaywalking Collision

Adding to this site’s archived claims involving pedestrian collisions, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for an incident involving a pedestrian who was crossing a street outside of a crosswalk.
In this week’s case (Khodadoost v. Wittamper) the Plaintiff pedestrian started crossing McKay Avenue in Burnaby, BC two car lengths north of the intersection.  The defendant motorist was stopped in the curb southbound lane.  As the pedestrian stepped in front of the vehicle the Defendant started to drive forward as his light had turned green.

In finding the pedestrian 70% at fault for the incident Mr. Justice Betton provided the following reasons:
[13]         The incident occurred while the plaintiff was crossing McKay Avenue at Kingsway Avenue, in Burnaby, British Columbia. He had obtained a ride from a friend, Ms. Khaki-Khaljan, to the area. She pulled off to the right of the northbound lane of McKay Avenue approximately two car lengths north of Kingsway Avenue. When the plaintiff exited the vehicle, he began crossing McKay Avenue west and outside of the crosswalk but moving at an angle toward the crosswalk…
[18]         When the southbound traffic began to move forward, the defendant followed. The plaintiff at that time was adjacent to the front driver’s side corner of the defendant’s car. The defendant’s vehicle may have made a very slight contact with the plaintiff before the defendant initially applied his brakes. When he placed his foot on the brake pedal, however, his foot slid off the pedal allowing his vehicle to move forward, essentially in a second forward motion. At that time, there was contact between the plaintiff and the defendant’s vehicle, and the plaintiff fell or was knocked to the road…
[64]         There is no question that the plaintiff began his crossing of McKay Avenue outside of the crosswalk. That fact is, however, of limited relevance. What is particularly important is the condition of the pedestrian and traffic control signals, and the plaintiff’s positioning relative to the crosswalk as he moved past the center point of the road and across the southbound lanes.
[65]         I am satisfied on the evidence that by the time the plaintiff had begun to cross those southbound lanes, the traffic signal for southbound traffic was green. All of the evidence indicates that traffic generally, including the defendant, had begun to move. Neither the plaintiff nor the defendant commented specifically on the condition of the traffic signal, but it is the only logical inference from the evidence as a whole…
[77]         It is my conclusion that the plaintiff must bear the majority of the liability for the incident. I apportion liability 70 percent to the plaintiff and 30 percent to the defendant. An award of damages must be adjusted based on this division of liability.
 

Pedestrian Struck in Cross Walk Found 75% At-Fault for Crossing Against "Don't Walk" Signal


Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, awarding a Plaintiff just over $10,000 for injuries and losses sustained in a cross-walk collision.
In today’s case (Furness v. Guest) the Plaintiff pedestrian was struck by the Defendant’s vehicle as he was trying to cross Nicol Street in Nanaimo, BC.  When the Plaintiff stepped off the curb to cross the street the “don’t walk” signal was flashing but he was not aware of this.  The Defendant was stopped in a tractor-trailer waiting for a green signal.  As the Plaintiff walked in front of the Defendant’s vehicle an advance green arrow illuminated permitting the Defendant to start driving.  The Defendant did not see the Plaintiff and struck him with his vehicle.
Both liability (fault) and quantum (value) were at issue in this trial.  Mr. Justice Halfyard held that the Defendant driver was careless for failing “to keep a proper lookout” and for failing to see the Plaintiff who was “there to be seen“.
The Plaintiff acknowledged that he was also partially at fault.  The Court was asked to determine how much each party was to blame.  Mr. Justice Halfyard found that the Plaintiff was more at fault and apportioned his blame at 75%.  In reaching this distribution of fault the Court reasoned as follows:

[58]         I find that the plaintiff’s degree of fault for the accident is considerably greater than the degree of fault of Mr. Guest. There is no legal formula for determining how fault for an accident should be divided. Counsel for the plaintiff referred me to a number of authorities in support of his submission that Mr. Guest should bear the far greater fault for the accident. Of course, the evidence and the findings of fact are different in all cases. As a consequence, previously-decided cases are of limited assistance at best. I found the cases of Funk v. Carter 2004 BCSC 866 (Williamson J.) and Morrison v. Pankratz 1991 CarswellBC 1765 (Shaw J.) to be of some assistance, particularly in the discussions of the general principles.

[59]         In my opinion, liability should be apportioned as to 25% against Mr. Guest, and 75% as against Mr. Furness, and I so order.

The Court then dealt with the value (quantum) of the Plaintiff’s claim.  The Plaintiff’s injuries and their course of recovery were summarized as follows:

[60]         Most of the injuries sustained by the plaintiff are not in dispute and I find them to be the following:

a)    undisplaced fracture of the posterior aspect of the medial femoral condyle of the right knee;

b)    tiny fracture of the very lateral aspect of the lateral tibial plateau, which was undisplaced;

c)     injury to the soft tissues in and around the right knee joint including a tear of the posterior horn of the medial meniscus;

d)    other minor contusions and abrasions.

[61]         The plaintiff complained of ongoing pain in his right ankle, which he attributes to the accident of February 13, 2007. ..

[81] I find that, by the time of trial, the plaintiff had substantially recovered from the injuries he sustained in the accident of February 13, 2007. There is no medical opinion evidence which causally connects the plaintiff’s present complaints to his injuries of February 13, 2007. Nor is there any evidence of objective medical findings that confirm the plaintiff’s ongoing complaints of pain in his knee. In these circumstances, I am not satisfied that the necessary causal connection between the accident and the plaintiff’s present complaints of physical pain has been proved. However, I do accept that the plaintiff is still experiencing some intermittent psychological effects from the accident, in the form of nightmares and fear of crossing the street. I find that these psychological effects are diminishing, and should not persist for much longer. The evidence does not establish a real and substantial possibility that these psychological symptoms will persist well into the future.

Mr. Justice Halfyard valued the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000.  The Court then reduced this award by 75% to take into account the Plaintiff’s own blame for his injuries.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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