Determining who has the right of way between a pedestrian and a motor vehicle is often straightforward. Where there are no traffic signals, pedestrians have the right of way at all marked and unmarked crosswalks. Where traffic signals exist, pedestrians have the right of way when the walk signal is present or when walking in the direction of the flow of traffic.
Despite these simple rules, accidents involving pedestrians and motor vehicles still occur. While fault may lie solely with the driver of a vehicle, sometimes it is shared between the driver and struck pedestrian. When a pedestrian is partially at fault in an accident, it is called contributory negligence. This means that the actions or inactions of the pedestrian played a contributing role in the accident.
When a pedestrian is found to be partially at fault for an accident, the damages, or losses that they have suffered as a result of the accident, will be reduced by a certain percentage from their damage award. That percentage is determined by the amount of fault that the pedestrian carries for the accident. For example, where an injured pedestrian’s damages are assessed at $100,000, and 25% of liability is attributed to the pedestrian in an accident, the damage award will be reduced to $75,000.
Factors that may result in a pedestrian being found contributorily negligent for an accident include:
- Texting or looking at a phone while crossing
- Talking on the phone while crossing
- Wearing headphones while crossing
- Crossing without a right of way
- Failure to look for vehicles that could pose a risk before crossing
- Wearing dark or non-reflective clothing at night
- Walking on the wrong side of the street where there is no sidewalk
How can a lawyer help when contributory negligence is a factor?
Even when one or more of these factors are present, there may be significant compensation available to the injured party. Remember, a finding of contributory negligence will reduce, not eliminate, the amount of damages an injured party is entitled to. It is possible, under unique circumstances, that a pedestrian is found 100% at fault for their injuries based on their actions where there is nothing the driver could have done to avoid the accident. A personal injury lawyer can gather all the relevant facts and compile an argument that maximizes an injured party’s entitlement to damages.
Case law examples
Determining fault for an accident is a fact-specific exercise. Each case will have different facts and variables that will need to be weighed. The following case law examples showcase the types of fact scenarios where the court considered contributory negligence in the context of pedestrian accidents:
Kippenhuck v. Evoy, 2020 NLSC 24
On a dark, November evening, the Plaintiff, Ms. Kippenhuck and her partner, Mr. Ivany, were walking Ms. Kippenhuck’s dog along Campbell Street, a residential roadway, in Happy Valley-Goose Bay. They were walking along the gravel shoulder on the right side of the road, such that traffic would approach them from behind. Ms. Kippenhuck was walking closest to the road. The Defendant driver, Mr. Evoy, approached the couple from behind and struck both of them with his vehicle. Neither Ms. Kippenhuck nor Mr. Ivany were wearing reflective clothing at the time.
The court found that Mr. Evoy was negligent and failed to drive in a reasonably prudent manner, which includes looking out for pedestrians in a residential neighbourhood and driving on the pavement, not on the gravel shoulder. However, the court looked to section 128(2) of the Highway Traffic Act, RSNL 1990, c C-33, which states that pedestrians walking on a roadway that has no sidewalk must walk only on the left side of the roadway or shoulder, facing traffic from the opposite direction. Ms. Kippenhuck’s breach of this provision alone was not necessarily enough to make her contributorily negligent. However, in these circumstances, walking on the wrong side of the road in the evening when it is dark while not wearing reflective clothing showed a lack of care on Ms. Kippenhuck’s part.
The court ultimately found that liability for the accident was split with 90% liability on the Defendant driver, Mr. Evoy, and 10% on the injured Plaintiff, Ms. Kippenhuck.
Tucker v. Taylor,  NJ No 428
Mr. Tucker parked his car on Duckworth Street in St. John’s, Newfoundland and Labrador. He exited his car, then closed the car door and began walking across Duckworth Street. He stopped in the westbound lane due to an approaching vehicle in the eastbound lane. However, the Defendant driver, Mr. Taylor, had pulled onto Duckworth Street in the westbound lane. He straightened out his vehicle, then struck Mr. Tucker and knocked him to the ground. Mr. Taylor did not sound his horn or apply his brakes prior to the collision. It was a dark, misty night, so visibility was poor.
The court found that Mr. Taylor was negligent in failing to see Mr. Tucker, who was standing still in the driving lane. Further, the court found that Mr. Tucker was negligent in walking into the driving lane without checking if it was safe to do so.
Liability was apportioned 80% to the Defendant, Mr. Taylor, and 20% to the Plaintiff, Mr. Tucker.
Cook v. Miller, 1985 CarswellNfld 188, 53 Nfld & PEIR 258
The pedestrian plaintiff, Mr. Cook, exited his workplace on the south side of Kenmount Road to walk to the post office on the north side of the street. Kenmount road is a 5-lane highway. Mr. Cook crossed the two east bound lanes and paused at the holding lane. A pickup truck turned into the holding lane and Mr. Cook proceeded to cross the two west bound lanes since there was no oncoming traffic. The Defendant driver, Mr. Miller, noticed the pickup truck braking in the holding lane, switched lanes into one of the westbound lanes, and struck Mr. Cook. Both Mr. Miller and Mr. Cook’s view of one another was impeded by the pickup truck.
The court found that liability was split 50/50 between Mr. Cook and Mr. Miller. Mr. Miller was negligent in not keeping a proper lookout while changing lanes, not slowing his vehicle when the pickup truck braked, and not ensuring the lane was clear when passing the pickup truck. It was also foreseeable that a person could be crossing Kenmount Road since it is not uncommon for pedestrians to do so. Mr. Cook should have foreseen that a vehicle may change lanes, especially when the vehicle ahead slows down. He also owed a duty of care to drivers not to cross the highway until it was safe to do so.
O’Donnell v. O’Blenis, 2003 NBQB 168, affirmed in 2004 NBCA 23
The Plaintiff pedestrian, Ms. O’Donnell, was walking on the north side of Mountain Road in Moncton, NB, heading in an easterly direction. As she approached the exit lane from KFC, she noticed Mr. O’Blenis’ vehicle at the takeout window. She continued toward the exit lane, she thought she made eye contact with Mr. O’Blenis and proceeded across the lane. Mr. O’Blenis and his passenger each looked left and right and did not see any pedestrian or vehicle traffic, so they proceeded onto the sidewalk. Mr. O’Blenis paused there waiting for a break in the traffic, then proceeded westerly to enter the roadway. At this moment, he took his foot of the brake, and the front of his vehicle collided with Ms. O’Donnell.
Mr. O’Blenis was negligent in failing to see Ms. O’Donnell approaching on the sidewalk and taking his foot off the brake before looking to his right to ensure the path was clear. Ms. O’Donnell was negligent in placing herself in a position of risk when she knew or ought to have known that it was unsafe due to Mr. O’Blenis’ attention being focused in the opposite direction. Given the responsibility on Mr. O’Blenis to show he was not negligent, the court held that liability should be apportioned 60% for Mr. O’Blenis, the Defendant, and 40% for Ms. O’Donnell, the Plaintiff.
Simpson Estate v. Cox, 2006 NSSC 84
The 81 year old pedestrian Plaintiff, Mrs. Simpson, was crossing Fraser Avenue in Sydney Mines to get to her house when she was struck by the Defendant driver, Ms. Cox, and killed. She was 70% of the way across the street when the collision occurred, but she had not been crossing at a crosswalk. Accordingly, Mrs. Simpson ought to have yielded the right of way to Ms. Cox, but Ms. Cox still had to drive with due care. Mrs. Simpson was crossing from the west side of the street, where there was a sidewalk, to the east, where there was no sidewalk and where her home was located. Had she crossed at a crosswalk instead, she would have had to walk along the road with her back to the traffic.
The court found that Mrs. Simpson could have easily avoided the accident by checking for oncoming traffic. Further, the court noted that Ms. Cox could have avoided the collision if she had been driving with due care, and that she ought to have seen Mrs. Simpson.
Liability was apportioned 40% to the Defendant, Ms. Cox, and 60% to the Plaintiff, Mrs. Simpson.
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