When it comes to a pedestrian injury caused by a motor vehicle, can you immediately presume the fault lies with the driver? Not always. It must be determined if both parties followed the laws and exercised reasonable care.
Liability in a motor vehicle accident that injures a pedestrian is weighed heavily. Who was responsible? In the case where a pedestrian has crossed the road negligently and is hit by a driver, the pedestrian has contributed to the accident, otherwise known as contributory negligence. What percentage of liability are each of the parties responsible for? That will be up to the Court to decide.
When determining liability, the reverse onus provision of the Highway Traffic Act dictates that the motorist is guilty until proven innocent. It becomes the responsibility of the driver to prove that he or she wasn’t responsible for the accident. A pedestrian only need prove that an accident happened and an injury took place. The burden lies with the driver to prove that he or she was acting responsibly, reasonably and within the law.
The Court will consider traffic and weather conditions and the mental state or fatigue of both parties. Were either distracted by cell phones or smart phones? Were drugs or alcohol involved for either driver or pedestrian? Was the pedestrian walking at a crosswalk? If not, was proper lookout implemented and were rules followed?
The safest place to cross the road is at a designated crosswalk, but even within a crosswalk, a pedestrian must recognize the law. Pedestrians are expected to exercise care regardless of location. When crossing the street at a place other than a designated crosswalk, the law says the pedestrian must yield to oncoming traffic. A pedestrian stepping out into oncoming traffic cannot reasonably expect that a motor vehicle will have ample opportunity to stop, regardless of whether they are in a crosswalk or not. And a driver should exercise care at all times to avoid collision with a pedestrian under any circumstances. Although drivers are most often found at fault, the Court can determine that a pedestrian was not acting reasonably or responsibly and find that the driver was only partially at fault. When the Court determines shared liability, it may make an award based on the percentage of liability. In the case where a pedestrian is found partially at fault, the pedestrian may be awarded damages, but the damages are significantly reduced in proportion to his or her liability. This seems to be common sense but, at times, it is not always this clear to the parties involved.
If you have been involved in a motor vehicle accident as a driver or pedestrian, please call the offices of AB Personal Injury Lawyer to find out what your rights are. We will explore all options and advise you of any compensation that may be due. We represent victim’s rights in Sault Ste. Marie, Trenton, Chatham and all surrounding communities. A member of our team will meet with you free of charge to evaluate your case.