Liability For a Car Hitting A Jogger Crossing In A Crosswalk in Calgary and Suffering A Brain Injury
Article edited by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.
Mr. Jogger was jogging a route that he had covered over 1,000 times before over the last 20 years. He was jogging running on the sidewalk. The weather was cool with no snow nor rain and the streets were dry. The area was well lit with streetlights. Mr. Jogger was wearing a red jacket with light pants, gloves, and running shoes. This clothing did not have reflective tape on it. He did not have a light on his head or any other part of his body. He was not listening to an iPod or other musical device. He was wearing his glasses, and they were clear. He did not have a dog with him.
At about three quarters of the way through his run he came to an intersection with a marked crosswalk. Because of his brain injury, he has no memory of events, but believes that he slowed as he came to the corner of the intersection. He cannot recall whether he stopped. He was familiar with the sightlines for traffic as cars came through the intersection. He looked to his left to see if there was any traffic coming and didn’t see any traffic. He looked to his right and saw a set of approaching headlights farther up the road to his right. There was a playground zone to the right of the intersection, so a lower speed limit was mandated for this car. The defendant’s vehicle would have been driving through this playground zone. Mr. Jogger stepped out into the marked crosswalk. He does not remember whether he jogged across the crosswalk, nor does he remember whether he sprinted or sped up as he tried to cross the road. Normally he would jog through the intersection. He thought he had more than enough time to cross the intersection with how far back the headlights of the car were on the road to his right.
The defence will be taking the position that Mr. Jogger was contributorily negligent in that he:
-Was not wearing reflective tape on his clothing, nor a light on his head or on any other part of his body;
-Stepped out too soon in front of the defendant’s car, without having time to safely cross the intersection– failure to keep a proper lookout; and
-Sped up or sprinted across the crosswalk– he was sprinting through the intersection to get past traffic.
The maximum exposure to contributory negligence of Mr. Jogger is likely 25% to 33% This is based on cases in which the plaintiff was held to be contributorily negligent because they were wearing dark clothing and walked quickly across the crosswalk. Here it should be noted that Mr. Jogger was not really wearing dark clothing – his jacket was red and he was wearing light pants. The defence critique will be that his clothing did not have reflective tape on it, nor was he wearing a headlamp or a light attached to his body. We have not found case law to suggest that reflective taping is a requirement without which one will be held to be contributorily negligent, other than in cases of the plaintiff riding a bicycle without a headlight, and they also did not have reflective clothing, or where they have been dressed all in black or dark clothing and did not have reflective clothing. We have not found a case where a plaintiff was held to be contributorily negligent because they did not have a headlamp or a light attached to their body.
Further, there is no evidence from Mr. Jogger as to the speed at which he crossed in the marked crosswalk. He doesn’t remember because of his brain injury. His usual habit was to jog. In the cases in which contributory negligence is attributed to the plaintiff for speeding through the intersection, the plaintiff has usually been in a rush, for example to catch a bus, and the implicit suggestion is that they were distracted and not paying attention to the traffic because they were rushing – thus, failure to keep a proper lookout. This does not seem to be the case on our facts.
Thus the maximum likely exposure of Mr. Jogger for contributory negligence is 25%/33%, and, depending on how the evidence plays out, no contributory negligence may in fact be found.
(This matter resolved at mediation with 20% contributory negligence on Mr. Jogger).
Failure to wear reflective clothing or a headlamp/light attached to another part of the body
In O’Connor v. James, 2009 BCSC 1119 the British Columbia Court of Appeal reversed the trial judge’s finding of 90% contributory negligence on the part of the plaintiff who was dressed entirely in black, without reflective clothing, and was walking in a roadway when struck by the vehicle driven by the defendant. The Court of Appeal varied this finding of contributory negligence to 50%. Here, on our facts, Mr. Jogger was wearing a red jacket and light pants, and was crossing at a marked crosswalk. This case is therefore highly distinguishable.
In Matkin v. Hogg, 2015 BCSC 560 the plaintiff was riding a bicycle at night without a helmet or an illuminated headlight on the bicycle. The court also mentions that it would have “been prudent” for her to wear reflective clothing. She was wearing light coloured clothing, none of which was reflective. The accident occurred at dusk. She had consumed alcohol and marijuana. The defendant was found to be the more plausible witness. The plaintiff was found to be 65% contributorily negligent. The major grievance of the plaintiff seems to have been the failure to have an illuminated headlight on her bicycle, and she also failed to obey a stop sign, and slow down. This case thus seems distinguishable.
In Quade v. Schwartz, 2009 BCCA 73 the plaintiff was riding his bicycle through an intersection when he collided with the car driven by the defendant, which turned left in front of him. The bicycle did not have a headlight or reflectors and all of the plaintiff’s clothing was black. The trial judge found the plaintiff to be 75% at fault. He stated: “Given that [the plaintiff] had no headlights or reflectors on his bicycle, Mr. Quaid was also negligent in wearing dark clothing instead of bright and reflective clothing”. The British Columbia Court of Appeal varied this to hold the plaintiff and defendant equally at fault, given the trial judge’s finding that the defendant should have seen the plaintiff in the well-lit intersection. Again, in this case, the plaintiff was without a headlight on his bicycle, and was dressed in dark clothing – thus this is distinguishable on the facts.
In Grela v. Sydor, 2001 ABQB 980, 302 AR 289, the 46-year-old deaf deceased was walking on the roadway in the early morning hours in winter wearing dark clothing, with his back to the oncoming traffic. He was held to be one third contributorily negligent. There was no mention of reflective clothing in this case. Mr. Jogger was dressed in a red jacket in light pants, was walking on the sidewalk, and crossing at a marked crosswalk. Thus this case is distinguishable.
Failure to keep a proper lookout/sprinting across the intersection
In Yurchi v. Johnston, 2006 ABQB 25, 394 AR 158, the plaintiff was crossing the street at an unmarked corner to catch a bus. He was wearing all dark clothing and had a hood pulled over his head so his face was difficult to see. “His clothing camouflaged him in the night darkness making him extremely difficult to see.” The collision occurred at 5 PM during heavy rush hour traffic in winter–like weather. The plaintiff was walking quickly in order to catch the bus. He walked into the defendant’s vehicle by stepping off the median when the defendant was only seconds away from entering the intersection. “… It was reckless for him not to hold up at the median.” The inference is that he was not paying proper attention to his environment because he was rushing to catch the bus. There was a well–lit intersection with marked crosswalks where he could have safely crossed the street one block away. The plaintiff was held to be one third responsible. On our facts, Mr. Jogger was wearing a red jacket and light pants, was not rushing, and crossed at a marked crosswalk. This case is therefore distinguishable.
In Cornell v. Arrell (1988), 3 YR 154, a decision of the Yukon Supreme Court, the plaintiff pedestrian was crossing at an intersection when she was hit by the defendant’s motorcycle. There was no marked crosswalk at the place where the plaintiff crossed. It was a clear sunny afternoon in August. The plaintiff was in a hurry as she had a lot of things to get done and was looking forward to a long weekend. She was, in her own words, proceeding at a very hurried pace. The defendant was convicted of dangerous driving. The plaintiff and defendant were held equally liable. Here the plaintiff admitted that she was rushing and thus inferentially not paying proper attention. On our facts Mr. Jogger answered in questioning that he had to slow down when he came to the marked crosswalk, and possibly stopped – thus he was not rushing.
In McMullen v. Lyon (1984), 66 AR 14, the plaintiff pedestrian was crossing at a crosswalk with her head down, walking quickly and not looking at oncoming traffic. She was held to be 25% contributorily negligent by the Alberta Court of Appeal. The accident took place at 8:25 AM in February, and the streets were icy. The trial judge had found no negligence on the part of the plaintiff, but this was overturned on appeal. The trial judge was primarily overturned on his finding that a crosswalk was “sacred territory”.
A finding of no contributory negligence
In Schuttler v. Anderson, 1999 ABQB 321, 243 AR 109, the defendant was found to be fully liable. The defendant’s motor vehicle collided with the plaintiff in a marked crosswalk. The accident took place at 6:45 PM in December. The plaintiff was wearing a light coloured ski jacket (light grey) and looked both ways before entering the crosswalk. There was a crosswalk sign. The plaintiff proceeded at a slow pace. When he was in the crosswalk he was blinded by the lights of the defendant and froze. It was held that the plaintiff did all that he could reasonably be expected to do once aware of the risk. The defendant was convicted of failing to yield the right-of-way to a pedestrian within a crosswalk. Similar to this case, Mr. Jogger was wearing light coloured clothing, looked both ways before crossing the marked crosswalk, and likely jogged across the crosswalk, in accordance with his usual habit. This case thus supports the argument that there should be no finding of contributory negligence of Mr. Jogger.
In Gulati v. Chan, 2015 BCSC 431, the plaintiff pedestrian was struck by a motor vehicle while walking at a marked pedestrian crosswalk. She looked to her right and left before entering the crosswalk and did not see any traffic coming in her direction. The defendant argued that the plaintiff should be held between 10 to 20% at fault for the accident because she failed to avoid his on–coming vehicle which, he stated, was a visible and foreseeable risk to her. The vehicle she saw approaching did not stop at the stop sign. The defendant was issued an uncontested violation ticket alleging that he drove without due care and attention and failed to yield to the pedestrian. The court held that it was not unreasonable for the plaintiff to believe that the defendant’s vehicle would stop at the stop sign. The defendant was held to be 100% liable for the accident. Like this plaintiff, Mr. Jogger crossed at a marked crosswalk and looked in both directions before entering the crosswalk.
Article edited by Walter W. Kubitz Q.C., a personal injury lawyer in Calgary, Alberta.