A pedestrian has the “right of way” at every street corner, not just those marked as crosswalks. I shared that shocking rule of the road in my last column. I say “shocking” because this is a very under-recognized rule of the road.
Even I, not just a lawyer but a personal injury lawyer, had not been clear about this until reading the recent court decision of Mr. Justice Pearlmen: Olson v. Farran, 2016 BCSC 1255.
Please let that sink in for a moment. Some intersections have crosswalk lines and pedestrian crossing signs. Most do not. A pedestrian has the right of way at all of them.
Not a smaller, less legally valid, right of way. It’s exactly the same.
Why, then, are there marked crosswalks at some intersections? Motorists are so bad about watching for and yielding to the rights of way of pedestrians that we need to be clobbered over the head with painted lines and signs at particularly high volume pedestrian crossing locations.
It’s like deer crossing warning signs on highways. Motorists must be alert, scanning the road for wildlife, every kilometre of every highway, not just the high volume deer crossing areas where caution signs are put up.
Consider how much money would be saved on road safety infrastructure if motorists simply paid attention all the time and followed the basic rules of the road. I digress.
I did ask readers to please, please (two pleases) check in for part two of this topic, where I promised to review legal obligations on pedestrians, even if they very clearly have the right of way.
Before I go further, I am going to emphasize that when a pedestrian has the right of way, you stop. Nothing, absolutely nothing, takes away that legal and moral obligation. I am about to write about a pedestrian’s legal obligation to look after their own safety. This does not, in any way, alleviate the motorist’s obligations.
Mr. Justice Pearlman faced a circumstance where a pedestrian, within an unmarked crosswalk, walking in a normal manner, had made it fully across the one side of the street and was struck by a motorist as she continued along to the other side.
The pedestrian clearly, without question, had the right of way.
The motorist had no excuse: it was broad daylight; the motorist had a clear, unobstructed view of the crosswalk area; the pedestrian had not darted out. It was that simple failure to pay attention to the road ahead that results in the vast majority of crashes.
The approaching vehicle was also there to be seen, though. The pedestrian, distracted by a cell phone discussion she was having with her mother (hands free, not like that matters in my view), paid no attention to the approaching vehicle from the time she stepped into the crosswalk until the moment before impact.
Had she been paying attention, she could have simply paused at the middle of the road and let the absent-minded motorist pass safely in front of her.
She was found to have “failed to take reasonable care for her own safety by entering the crosswalk without keeping an adequate watch for the defendant’s oncoming vehicle”. Mr. Justice Pearlman assessed this pedestrian, who very clearly had the right of way, 25% at fault.
Instead of recovery 100% of fair, financial compensation for her injuries and losses. The pedestrian will recover 75%.
I am cringing at the smug, “served her right” reaction that some of you are feeling. Please give your head a shake, watch for pedestrians, and have a smile in your heart when you show the courtesy of following the rules of the road by stopping for them.