Hit while jaywalking—can I make an insurance claim?

Crossing the road outside of sanctioned crosswalks can net a pedestrian a litany of issues, from potential fines to injuries. Many motorists and pedestrians are unsure of the rules surrounding jaywalking and how it could impact a potential injury claim.

What is jaywalking?

Before car centricity became the dominant design of all major North American cities, streets were less rigidly structured as there were fewer motor vehicles on the roads. If a pedestrian wanted to cross the street in Halifax around 1907, they would simply cross the street, hardly checking both ways.

As personal motor vehicles became popular, pedestrians began to lose their control of city streets. With this rising popularity, the onus fell onto the pedestrian to yield the road to the vehicle. The term “jaywalker” became a catch-all for pedestrians who were ignorant of the rules of the road and did not abide by their new relegation to sidewalks.

What responsibilities do pedestrians have in Nova Scotia?

The Motor Vehicle Act outlines the following responsibilities for pedestrians in Nova Scotia:

• A pedestrian shall not leave a curb or other place of safety and walk or run into the path of a vehicle that is so closely approaching that it is impractical for the driver of the vehicle to stop.
• Where a pedestrian is crossing a roadway at a crosswalk that has a pedestrian-activated beacon, the pedestrian shall not leave a curb or other place of safety unless the pedestrian-activated beacon has been activated.
• A pedestrian crossing a roadway at any point other than within a crosswalk shall yield the right of way to vehicles upon the roadway.
• A pedestrian or a motorist is not relieved from the duty to exercise due care.

If you are found in violation of any of these responsibilities, law enforcement can impose a fine according to the Summary Offence Tickets Regulations.

If I was hit while jaywalking and I was injured, can I sue the driver?

Yes, it is possible that you still have a valid injury claim, even if you were jaywalking. You can still make an injury claim against the motorist who struck you if you sustained injuries. While your error as a pedestrian may have contributed to the accident, it is possible that the driver also erred, which could have contributed to the accident. If the driver was driving without proper headlights, was speeding, was impaired, was distracted, or was in any other way in breach of their duty of care, it is possible that you are entitled to compensation.

You prove fault in Nova Scotia by showing that a person’s driving was in contravention of motor vehicle laws or otherwise substandard. Under Nova Scotia’s injury law, proving fault in car accidents falls under the principles of negligence. Negligence refers to the failure of a person to exercise reasonable care, resulting in harm or injury to another person. In order to prove negligence, four things must be proven:

1. A duty of care is owed: A duty of care is a legal obligation to act reasonably and avoid harming others through your acts or omissions. A duty of care is owed between all motorists on the road. There is an expectation that all drivers will be held to the same standard in keeping themselves and others safe on the roads.
2. A breach of standard of care occurred: The standard of care can be determined by looking at Nova Scotia traffic rules, as well as what might be expected by a reasonable person. The standard is breached when someone fails to comply with the traffic rules or does not take “reasonable care” driving in the circumstances. An example of failing to meet the standard of care is driving through a stop sign without stopping first. In order to prove that the other driver breached the standard of care, courts will review evidence such as testimony from the drivers involved in the accident, witness testimony, police charges laid, reports by accident reconstruction specialists, surveillance footage, and cell phone records.
3. Causation: Causation requires that the actions (or inactions) of the at-fault party led to the injuries suffered by the other party.
4. Damages: Damages, or losses, financial or otherwise, must have resulted. Without damages, there is no personal injury claim. Damages may include loss of income, medical care costs, and general pain and suffering.

   This becomes a nuanced issue when a pedestrian also breaches their duty of care. In some instances, the total settlement an injured pedestrian would be entitled to will be reduced because of their contributory negligence. When an injured party is partially at fault in an accident, it is called contributory negligence. This means that the actions or inactions of the individual played a contributing role in the accident.

   When someone is found to be partially at fault for an accident, the damages they could be awarded for their injuries will be reduced by the percentage for which they are found at fault for the accident. For example, where an injured party’s damages are assessed at $100,000, and they are found 25% liable for the accident, their damage award will be reduced to $75,000.

In the case of an injured jaywalker, the lawyers at MacGillivray Law may be able to help minimize the impact contributory negligence has on your insurance claim. Book a free consultation to reach out.