04 Apr Pedestrian Run Over In Alley

In the case of Lensu v. Victorio, 2019 BCSC 59, the Plaintiff and two friends were waiting for a ride in an alley, close to the open doorway of a parkade. The Defendant driver exited the parkade and saw them blocking the driveway. His car was on an incline so he moved forward, running over the Plaintiff’s foot. The Plaintiff sustained injuries to her left ankle, foot and lower back.

In order to determine liability, the Court had to apply common law duties of care, supplemented by relevant provisions under the provincial Motor Vehicle Act (the “Act”).

On the plain wording of the Act, the Court was satisfied that the Defendant’s vehicle had the right of way in the alley. However, he also had a duty to operate his vehicle in a manner that allowed him to avoid pedestrians who were visible to him, and not unreasonably crossing his path of travel. In the Court’s view, he should have anticipated the presence of pedestrians. The Defendant tried to squeeze by the Plaintiff without taking appropriate precautionary measures, assumed she would move away, and ended up running over the back of her left ankle and foot. The Court was satisfied that although the Defendant may have had the right of way, he did not exercise the reasonable care required of him.

As a pedestrian in the alley, the Plaintiff also bore certain obligations as set out in the Act.  When walking down the alley and waiting for her ride, the Plaintiff was obliged to stay on the extreme left side of the alley, facing traffic approaching from the opposite direction. The Court found that she did not meet these obligations. Had the Plaintiff been paying attention and facing traffic, she would have seen the Defendant and had a greater opportunity to ensure she was safely out of the way.  The Court noted that there is “a duty upon drivers and pedestrians alike to keep a proper lookout and take reasonable precautions in response to apparent potential hazards”. The Court was satisfied the Plaintiff did not exercise due and reasonable care when standing in the alley waiting for her ride.  In so doing, she contributed to the accident.

On the facts of this case, the Court found the Defendant 75% liable for the accident and the Plaintiff 25% liable.

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