Can You Be Held Responsible for Distracted Walking in British Columbia?

While Toronto City Council has passed a motion to encourage regulation of distracted walking, reports indicate that the BC Ministry of Transportation is not going down the same road. The Ministry of Transportation has declined to weigh in on the issue.

Pedestrian advocates argue that “at the gentle speed of a normal walking pace, we can afford to multitask, while at higher speeds, we can’t”. This is the rationale behind why distracted driving is prohibited in the BC Motor Vehicle Act, but has not been incorporated for distracted walking.

What is Distracted Walking? 

Distracted walking refers to walking while using a cell phone or mobile device for texting, web browsing, playing Pokémon Go, using applications, posting on social media, emailing, etc.

While distracted walking can refer to other distractions, such as reading or talking with friends and generally not looking where you are going, the growing trend in distracted walking usually refers to the use of mobile devices.

BC Laws on Distracted Pedestrians

As stated above, the BC Government has elected not to weigh in on the growing distracted walking trend. In part, this is because the Ministry of Transportation has determined that existing laws can regulate any concerns over distracted walking.

A spokesperson for the Ministry of Transportation stated that the “province is not considering putting in place a law to ticket pedestrians who text and walk,” as “local governments have the authority under the Motor Vehicle Act to regulate pedestrian traffic, if they wish to do so.”

The BC Government is referring to section 124(1)(b) of the Motor Vehicle Act, which states that: “The council of a municipality may, by bylaw not inconsistent with or derogatory to this Part, provide for the following:” including “the regulation, control or prohibition of pedestrian traffic”.

Each municipality in British Columbia is allowed to pass its own by-laws governing distracted walking and courts have established common law rules for when pedestrians are responsible for their injuries.

When Will Courts Find the Distracted Walker Responsible for an MVA?

In Enright v. Marwick, 2004 BCCA 259, the court was assessing the relative fault between a potentially distracted pedestrian and an allegedly negligent driver.  Dr. Enright, the pedestrian, was attempting to cross at the crosswalk on a dark and stormy evening when he was hit by Mr. Marwick’s car, causing him to sustain injuries. The defendant accused him of failing to keep a proper lookout for his own safety as when he was crossing the street, he was distracted by “shifting his umbrella from his right to his left hand, surveying the puddle of water in front of him and gathering up his coat before attempting to avoid the puddle and enter into the crosswalk.”

The defendant Mr. Marwick did not see Dr. Enright and his evidence was that as he approached the crosswalk he slowed to under 35 km/hour and looked for pedestrians, but did not see any. This was attributed to the weather, late hour and a garbage can that obstructed his view.

Despite Mr. Marwick’s failure to stop at the crosswalk, the trial judge held and the Court of Appeal affirmed, that Dr. Enright was 100 percent responsible for his injuries as his failure to keep a lookout was a violation of section 179(2) of the Motor Vehicle Act. Mr. Marwick was not held responsible as he and other drivers reasonably assumed there were no pedestrians crossing as opposing traffic had not yet stopped and the pedestrian was not visible.

By contrast, in Russell v. Parks, 2014 BCCA 104, the BC Court of Appeal found the driver was 75 percent liable for the accident. The pedestrian Mr. Russell was walking on a sidewalk adjacent to a parking lot. Someone opened the door to a shop and Mr. Russell had to walk further into the parking lot to avoid the open door. Mr. Russell argued that where he was positioned should be considered a “place of safety.” However, he was distracted by walking around the door that he did not notice the defendant Mr. Parks attempting to park in the space where he was walking. Mr. Parks was also distracted, looking over his shoulder to check his blind spot.

The British Columbia Court of Appeal relied on section 181 of the Act which imposes a duty on a driver “to exercise due care to avoid colliding with a pedestrian on a highway.”  The standard of “due care” will obviously be higher in a parking lot than, for example, on a freeway, because one can expect pedestrians to be using that space.

What Should You Do?

If you or someone you know is in need of a Vancouver pedestrian accident lawyer, contact our trusted personal injury lawyers in Vancouver BC. At Taylor & Blair, we have helped thousands of injured accident victims and their families get the compensation they deserve. Call us at 604-737-6900 to schedule a free consultation on your case.