Distracted driving is an issue making headlines throughout British Columbia in recent months as cell phone use while driving has become increasingly prevalent and dangerous for users of highways. A CBC article published in November, 2017 states that “more than 25 per cent of all car crash fatalities in B.C. occur due to distracted driving.” Although cell phone use while driving poses a serious danger for drivers, passengers, and pedestrians, walking and talking on your cell phone can be just as risky.
Distracted walking has become so problematic that lawmakers across Canada and the United States have contemplated fining pedestrians using cell phones while crossing the road. The US-based Governors Highways Safety Association noted in a 2016 report projecting an 11% increase in pedestrian traffic fatalities for 2016. Perhaps in response to projected surges in pedestrian deaths occurring on roadways, Honolulu enacted a so-called “Zombie Law” in 2017 that authorizes police to fine pedestrians for crossing streets while viewing electronic devices. Toronto city council contemplated introducing fines and even banning distracted walking, but such laws have yet to be introduced in Toronto or other cities across Canada. Although city council members in Vancouver and Calgary have voiced interest in the past in enacting laws to curb distracted walking, laws imposing fines or bans on distracted walking have yet to be introduced throughout Canada.
The law in British Columbia can be somewhat forgiving of pedestrians when it comes to determining fault for accidents in which a pedestrian is hit by a motor vehicle. For example, in Liston v. Striegler, 1996 CanLII 1599 (BC CA), an intoxicated pedestrian running barefoot across a street at 3am was hit by a motorcycle. Another driver was able to brake in time and avoid hitting the pedestrian, but the court found that the driver of the motorcycle was not keeping a proper lookout and, although not speeding, was still considered to be driving at an excessive speed given the busy traffic and setting in the area where the accident occurred. The pedestrian was found to be 60% at fault for the accident.
In Lemesurier v. McConnachie, 2009 BCSC 89, a pedestrian was hit by a vehicle while crossing at an intersection. Although the injured pedestrian was crossing the street contrary to the traffic signals at the intersection, the driver was found to be at fault for the accident despite the court’s finding that the defendant was not speeding or otherwise in obvious breach of the rules of the road. The court determined that where circumstances bring into question whether the rules of the road will be followed by pedestrians, a driver should take into consideration present circumstances and drive accordingly. Because the pedestrian was crossing the road with a group of other people who were not obeying traffic signals, the court found that the driver should have proceeded with more caution. The driver was found to be 40% at fault for the accident. The court’s ruling in this case suggests that drivers need to be more careful and cautious when special circumstances warrant extra care.
The Supreme Court of British Columbia was not permissive in its assessment of fault against a pedestrian hit by a motor vehicle in Olson v. Farran, 2016 BCSC 1255, indicating that pedestrians distracted by cell phone use can be held to be at fault to some degree when crossing the street. In this case, a pedestrian was crossing the street while communicating on her cell phone using an ear bud when she was struck by an oncoming vehicle. Although the pedestrian testified that she was not upset or distracted during the phone conversation, the court found that she was likely distracted by the conversation and determined that she was 25% at fault for the accident. Olson v. Farran sets a precedent for distracted walking: whether you claim to be distracted or not, using your cell phone while crossing the street can lead a judge to conclude that you may be partially at fault for an accident even if you have not otherwise acted negligently.
Regardless of whether you are using a cell phone while crossing a street by foot, you are obligated to demonstrate due care while using the road. As a pedestrian, the Motor Vehicle Act requires you to yield the right of way to a vehicle if you are not in a crosswalk, and accordingly, you should be especially careful when doing so. Generally, the circumstances in a given situation will indicate how careful one should be when crossing a road on foot or as a driver. When driving, for example, you should be especially careful in areas where there is an abundance of pedestrians, such as parking lots or intersections that attract heavy foot traffic. Russell v. Parks, 2014 BCCA 104 analyzes a situation where a pedestrian was found to be 25% at fault for failing to look up and see the vehicle that hit him, whose driver was looking behind him while driving forward.
Although the law may tend to favour pedestrians injured in motor vehicle accidents, the courts can be less forgiving if you are found to be using your cell phone while crossing the street. Sending text messages or checking the internet on your phone may be harmless on their own, but when you engage in these activities on the road while driving or walking, you are left distracted, vulnerable, and in danger of becoming injured in a motor vehicle accident. Even in accidents where another driver is at fault for causing an accident with a pedestrian, the pedestrian may be held to be partially at fault for using a cell phone. Finish using your cell phone and pay attention to ensure it is safe to cross the road.
If you are a pedestrian involved in a motor vehicle accident while you were distracted, having an experienced, competent lawyer can make a significant difference in determining fault for the accident. The lawyers at Preszler Law Firm can help you if you have been injured in an accident caused by another’s fault while using the road.