Are jaywalking pedestrians "fair game" for drivers?

Both pedestrians and motorists are governed by the Motor Vehicle Act. According to s. 180 of the Act, a pedestrian who is crossing a highway at a point not in a crosswalk must yield the right of way to a vehicle.

Duties of the Driver to a Jaywalker in ICBC Claims

One could interpret this to mean that a driver need not stop for a pedestrian in the road. However, the very next section of the Act, s. 181, provides that a driver of a motor vehicle must do the following:

(a) exercise due care to avoid colliding with a pedestrian who is on the highway,
(b) give warning by sounding the horn of the vehicle when necessary, and
(c) observe proper precaution on observing a child or apparently confused or incapacitated person on the highway.

These seemingly conflicting provisions allow the courts to look at the broader context when assigning liability. In general, if a driver sees a pedestrian, and can avoid hitting the pedestrian by taking reasonable steps, then the driver must take those steps.

For example, in Stevanovic v. Petrovic, 2011 BCSC 2, the plaintiff, Mr. Stevanovic, was standing in the road, waiting for the defendant, Mr. Petrovic, to pick him up. Mr. Petrovic decided to drive up to Mr. Stevanovic at a high rate of speed and stop or swerve at the last second. Unfortunately, Mr. Petrovic miscalculated and struck Mr. Stevanovic. Despite the fact that Mr. Stevanovic was standing in the road outside a crosswalk, the judge found that the driver, Mr. Petrovic, was 100% liable for the accident.

However, a jaywalking pedestrian cannot simply saunter across the road. In McDonald v. Klassen, 2005 BCSC 1188, the Plaintiff, Ms. McDonald, was crossing the road when she was struck by a vehicle driven by the Defendant, Ms. Klassen. Prior to the collision, both pedestrian and driver saw each other, but the pedestrian was unconcerned about the approaching vehicle. Rather, it appears that Ms. McDonald encouraged Ms. Klassen to “be fruitful and multiply”, but not in those words. The judge provided this description of Ms. McDonald’s conduct:

The plaintiff was angry, swearing and quite likely intimidating. Ms. McDonald had her position in the roadway and intended to take as much time as she liked to cross, even after she became aware of the oncoming vehicle. She gambled that she had the right of way even though there was no painted crosswalk and it was a busy avenue.

Justice Macauley provided a helpful summary of the applicable law:

[51] Sections 180 and 181 apply in the case at bar. As well, both the pedestrian and driver owed common law duties: the plaintiff, as a pedestrian had a duty to take reasonable care for her own safety and the defendant, as driver had a duty to exercise due care to avoid a collision with a visible pedestrian. The duties owed by one are not greater than those owed by the other. The question of degrees of fault if these duties are breached can only be resolved based on the evidence as a whole.

The judge ultimately concluded that both the pedestrian and the driver were at fault:

[52] I have taken into account that there were no vehicles in sight in either direction when the plaintiff stepped out to cross 6th Avenue. But I also take into account that Ms. McDonald should have known that the avenue was too wide to cross in safety because vehicles could appear over the crest of the hill and reach her before she could safely walk across. I further take into account that she took no evasive action once the defendant’s vehicle came into sight but acted throughout as though she had the right of way and was prepared to insist on it. When the defendant slowed, Ms. McDonald engaged in an altercation rather than carrying on to the safety of the curb.

[53] As to the defendant, I take into account that, after seeing the pedestrians, she focused more on expressing her displeasure by sounding her horn, instead of coming to a full stop as she had time to do and allowing the pedestrians to pass. Ms. Klassen also then tried to manoeuvre her car between the plaintiff and her mother rather than waiting until the three women passed safely in front of her. I am satisfied that she failed to exercise due care to avoid colliding with the plaintiff. She must bear most of the blame as she could easily have avoided the ensuing collision.

[54] On the whole of the evidence, I find that both parties were at fault. I find Ms. Klassen 70 percent at fault and Ms. McDonald 30 percent at fault.

(written by Troy McLelan)

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