Walter v. Plummer,2010 BCSC 1017
July 21, 2010- This motor vehicle accident case arising out of an accident between a motorcyclist and a pedestrian. The accident occurred shortly after 3 p.m. when the claimant, who was jaywalking across Rutland Road, was struck by a motorcyclist.
It was sunny and the roads were dry. Mr. Walter was a 16-year-old Grade 11 student at Rutland Senior Secondary. He had a cardboard box that measured approximately two feet by two feet. He was carrying a box as he left school just after 3 p.m. There is a pedestrian crosswalk at the intersection of Leathead Road and Rutland Road. Many students, however, simply cross Rutland Road in the area of the school parking lot, either to access the bus stop on the opposite side of the road or simply to avoid walking the extra distance required to use the pedestrian crosswalk at the traffic lights. Mr. Walter chose that route that day to cross and he jaywalked into traffic
Lawyers for ICBC and the injury claimant hired mechanical engineers to give opinions about speed but the judge gave these reports little weight. The law imposes both statutory and common law duties on pedestrians and drivers. The statutory duties are found primarily in the Motor Vehicle Act, R.S.B.C. 1996, c. 318. Superimposed on these statutory duties are the duties imposed by the common law of negligence
The court found that there was a reasonably foreseeable risk of jaywalking pedestrians. Further, the risk was not just of any jaywalking pedestrians but of students. The fact that the foreseeable pedestrians would be students is significant because young people may take less care for their own safety than adults.
A second and related circumstance is that the motorcyclist knew that the northbound lane was empty and that the vehicles in the left turn and through southbound lanes were stopped. The prospect of students jaywalking in that situation is higher than it would be if there was traffic moving in both directions.
Finally, and significantly, the motorcyclist was passing a tractor-trailer unit stopped in the through lane. That truck entirely obstructed her view of the through lane in front of it. If there were pedestrians attempting to cross, it would have been apparent to her that she would not be able to see them.
All of these features serve elevate the degree of caution necessary to meet the standard of care. To proceed at 40 kilometres per hour passing a stationary truck in an area known to be frequented by jaywalking students is negligent.
As to Mr. Walter the injury pedestrian, he owed a duty to take reasonable care for his own safety. The court found that he breached that duty in a number of ways. He crossed other than at a marked crosswalk, and thus contrary to the statutory obligations he was under. Further, just as it should have been apparent to Ms. Plummer that she could not see crossing pedestrians, it ought to have been apparent to Mr. Walter that he could not see oncoming traffic. Finally, and most significantly, unlike Ms. Plummer who was looking where she was going, Mr. Walter did not look into the oncoming lane at all to determine if he could safely cross. His negligence is greater than that of the motorcyclist. The court apportioned liability 60 percent to Mr. Walter and 40 percent to the motorcyclist. Posted by Mr.Renn A. Holness
Issue: Should a jaywalker always be found 100% at fault?