By Kerry Grieve
Are you wondering if pedestrians have the right of way? As with many questions of law, the answer to this question is a qualified “maybe”. Many pedestrians appear to think they have the right of way, simply because they are pedestrians. While technically it is true that pedestrians have the right of way in certain situations, it is not always the case. Either way, when it comes to a contest as to who has the right of way between a motor vehicle and a pedestrian, you don’t want to rely solely on abstract legal rights.
It may be helpful to know some of the basic rules governing the rights of way of pedestrians – particularly at crosswalks, so I will provide a brief summary of the pedestrian crossing rules in BC. Before doing that, I will make a personal plea. To borrow from the famous advice of Sergeant Esterhaus in Hill Street Blues (yes I am dating myself): “Let’s be careful out there”.
All of us have probably witnessed on the streets of Vancouver, and other less populated areas of B.C., pedestrians doing foolish things:
- crossing when the pedestrian control signal says “Don’t walk”;
- starting to cross when there is 1 second left on the walk sign (and trying to make up for the late start by running);
- crossing when the pedestrian light hasn’t actually turned green yet because there is an advance green for cars turning (putting cars directly in the path of pedestrians who aren’t paying attention);
- pedestrians who run across a busy street to catch a bus;
- pedestrians who walk out into the crosswalk after activating the pedestrian crosswalk flashing lights, without first looking to see if it is safe and;
- last but definitely not least, pedestrians who cross streets looking down at their phone, instead of paying attention to their surroundings.
It is important to remember that rights of way can not be used as a protective cloak to shield you from injury. The best way to avoid injury is to take care of your own safety – be watchful, be careful and look out for your own safety.
In B.C. the general rules of the road and rights of way are set out in the Motor Vehicle Act, RSBC 1996, c. 318.
Pedestrians Have the Right of Way:
The starting point for discussion of the rights of way of pedestrians is s. 179 of the Motor Vehicle Act which provides in part, as follows:
179 (1) Subject to section 180, the driver of a vehicle must yield the right of way to a pedestrian where traffic control signals are not in place or not in operation when the pedestrian is crossing the highway in a crosswalk and the pedestrian is on the half of the highway on which the vehicle is travelling, or is approaching so closely from the other half of the highway that he or she is in danger.
2) a pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impractical for the driver to yield the right of way.
Basically, these sections mean that a pedestrian has the right of way if in a crosswalk, but a pedestrian should not step off the road way into the path of a vehicle that cannot reasonably be expected to stop in time (whether in a crosswalk or otherwise).
These sections must be considered along side of s. 181(1) which states that “a driver of a vehicle must exercise due care to avoid colliding with a pedestrian who is on the highway”.
This section has been interpreted by the B.C. Court of Appeal in Cook v. The (1990), 45 B.C.L.R. (2d) 194 (C.A.) to mean that the Act is not an exclusive code, and a common law duty of care to exercise due care for others and yourself also exists.
Pedestrians Do Not Have the Right of Way:
However, a pedestrian does not have the right of way if crossing a highway at a place other than a crosswalk. Section 180 provides:
When a pedestrian is crossing a highway at a point not in a crosswalk, the pedestrian must yield the right of way to a vehicle.
Having the right of way does not eliminate the common law duty to use care for one’s own safety. Stepping from the curb into a crosswalk with the right of way, but without looking in the direction of a known danger will generally amount to an act of contributory negligence if an injury results.
In many cases, there will be a division of liability between a motor vehicle and a pedestrian. Where both parties have not met their respective standard of care, an apportionment of liability must be made. Section 1 of the Negligence Act, R.S.B.C. 1996, c. 33 provides that such an apportionment is determined by “the degree to which each person was at fault”. In Cempel v. Harrison Hot Springs,  43 B.C.L.R. (3d) 219 (C.A.), the B.C. Court of Appeal found that the degree of fault is based on blameworthiness. The court will determine blameworthiness by gauging the degree or extent to which each party departed from the standard of care owed under the circumstances.
You should also be aware that a “crosswalk” does not need to be “marked” for a pedestrian to have the right of way that a crosswalk affords. As per the definition of a crosswalk in s. 119 of the Motor Vehicle Act:
(a) a portion of the roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface, or
(b) the portion of a highway at an intersection that is included within the connection of the lateral lines of the sidewalks on the opposite sides of the highway, or within the extension of the lateral lines of the sidewalk on one side of the highway, measured from the curbs, or in the absence of curbs, from the edges of the roadway;
What this latter section means is that if you are walking parallel to the road along a sidewalk and come to an intersection, when you cross the intersecting street, and continue walking straight, you will be considered to be in an “unmarked” crosswalk as you cross the road. Note that according to s. 119 of the Motor Vehicle Act a sidewalk means “the area between the curb lines or lateral lines of a roadway and the adjacent property lines improved for the use of pedestrians”. Thus if the road does not have a sidewalk, you won’t be considered to be in an unmarked crosswalk as you cross the road.
There are many cases in the B.C. Courts which deal with liability assessments in every fact scenario imaginable.