Pedestrians sometimes Contributorily Liable in Pedestrian-Motorist Collisions

In October 2015, a 35 year old man suffered severe injuries after being struck by two vehicles on the QEW Highway in St. Catharines. As the man was crossing the highway, he was first struck by a transport truck, the driver of which remained on the scene, and then by a second vehicle which continued driving away possibly unaware that the man had been struck as he was laying on the highway.  The accident victim was airlifted to a Hamilton hospital with serious internal injuries and injuries to his lower body.

A St. Catharines OPP officer at the scene commented on the danger of pedestrians walking on highways and why it is prohibited.  He stated that contrary to what some pedestrians think,  it’s actually very difficult to maneuver around multiple lanes of fast moving traffic. And at the end of the day, it is simply not worth the risk.

Pedestrians must exercise particular care when walking along highways. This is of course due to the fact that cars on a highway are typically travelling at a high speed. Also, because highways are not built to accommodate pedestrians, there are rarely any crosswalks or sidewalks which puts pedestrians at risk, for example, when a vehicle drives onto the shoulder where they are walking. The risks increase when there is poor visibility, slippery roads or stop-and-go traffic conditions.

Pedestrian-vehicle accidents are unfortunately common and typically, only the pedestrian suffers injuries in these incidents. For this reason, there is an onus on drivers to be attentive and keep a lookout for pedestrians.  On the subject of driver responsibility, the Ontario Highway Traffic Act, 2009, states "When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle."  This means that the driver must generally prove that they acted responsibly and reasonably and were therefore not negligent in causing the injury. However, it is by no means a forgone conclusion that the driver will be found at fault in pedestrian collisions.

Pedestrians also have an obligation to do their part to ensure their own safety.  In Ontario case law, judges sometimes rule in favour of the driver when it was concluded that the pedestrian did not act with due care for his or her own safety. This is referred to as ‘contributory negligence’, as the victim of an accident is found guilty of contributing in some way to the accident and their resulting injury, due to their own negligent actions.

In the trial, Irvine v. Smith, the judge ruled in favor of the defendant, after he accidentally struck a 19 year old man who unexpectedly jumped into the side of his truck as he was driving on a county road. The driver saw the young man walking alongside the road and moved into the middle lane to give him a wider berth. However, with no warning and little time to react, the young man suddenly jumped into the street. The judge concluded that the young man’s actions were “unforeseen, unexpected and unanticipated” and as a result, the driver was found not liable for the accident and the young man’s tragic death.

The above example is one of mitigating circumstances, owing in part to the young man’s unanticipated actions. Nevertheless, pedestrians cannot assume that drivers will always be found liable for any accident in which they are involved.  However, pedestrians who follow the rules of the road, including the following safe practices, are not likely to contribute to circumstances that may endanger them.

• Only cross at a designated crosswalks.
• Look out for traffic and never cross in the face of oncoming traffic.
• Ensure that you are visible to drivers.
• Walk across the street; do not run or jog.
• Avoid distractions when crossing a road (such as talking on the phone or listening to loud music).

Drivers must also clearly exercise responsibility with respect to the following rules of the road. Failure to do so is likely to result in a  finding of negligence in a pedestrian-vehicle collision resulting in injury.

• Maintain a proper lookout for pedestrians
• Keep windows clear and free of obstructions
• Maintain an appropriate speed for the driving conditions.
• Always be attentive to your surroundings.
• Be more cautious in areas where pedestrians are more likely to be seen.
• Never drive under the influence of alcohol or drugs.
• Avoid distractions while driving, such as talking or texting on your cell phone.

At Injury Lawyers of Ontario, we have an outstanding team of lawyers with expertise in personal injury litigation resulting from pedestrian-vehicle accidents.  We have vast experience in negligence actions and in negotiating with insurance companies for favourable compensation for our clients. If you or someone you love has been injured in a pedestrian-vehicle accident, call ILO today for a no-obligation consultation.  Our experienced staff are well prepared to answer questions about your legal right to compensation, the strength of your claim, and what's involved in obtaining compensation for any losses resulting from your injury.