Special Report: Walkable Streets

How Legal Liability is Determined in a Driver-Pedestrian Collision

Legal liability assessments in the case of collisions between drivers and pedestrians indicates that the City's policy of neglecting uncontrolled crosswalks is not legally sound.

By Nicholas Kevlahan
Published November 10, 2013

For many years, the City of Hamilton has steadfastly refused to provide safe and convenient pedestrian facilities by using the argument that these facilities, such as crosswalks without associated stop signs or traffic lights, open up the city to potential liability from pedestrians who might be injured using the facility.

The most infamous example of this thinking was the decision, over a decade ago, to remove the signs from unsignalized designated pedestrian crosswalks and allow the painted lines to gradually fade away over many years.

'Ghost crosswalk' on Hunter near City Hall (Image Credit: Undustrial)
'Ghost crosswalk' on Hunter near City Hall (Image Credit: Undustrial)

The fact that Hamilton has the second worst rate of pedestrian injuries in Ontario gives the lie to the claim that this decision has somehow made the streets safer for pedestrians.

Liability for the City

There remains, however, the argument that even if refusing to designate crosswalks at uncontrolled intersections makes walking more dangerous and less convenient, it at least avoids a significant liability risk to the City.

It would be helpful if the City's Legal department actually engaged in an open discussion about the reasons for their opinion regarding liability at non-signalized crosswalks, and why they think no signs should be posted for drivers reminding them of their duty to yield to crossing pedestrians.

Any such legal opinion is a particular interpretation of the law and assessment of relative risks and benefits, and involves value judgments that should be influenced by public debate.

This discussion could include: citing particular parts of the Highway Traffic Act and Regulations, relevant jurisprudence and precedent, and insight into how the lawyers weight the risk of liability to the City against the duty to provide safe and convenient infrastructure to pedestrians (while supporting the City's official goal of promoting walking and a recent Ontario Coroner's Office report on pedestrian deaths).

Presentation on Pedestrian Accidents

Until we hear from them, this slide presentation by Frank Devito [PDF] of the Toronto law firm Beard Winters LLP provides some guidance. I should emphasize that IANAL, and would be interested in hearing comments from lawyers on this discussion.

Devito's presentation addresses precisely the issue we are interested in: pedestrian and driver liability in the event of a collision:

"This presentation will focus on the duties of pedestrians and drivers and will discuss some of the liability assessments which have been apportioned against pedestrians and drivers in recent decisions."

I will quote some salient passages, and then draw some conclusions for Hamilton.

  1. "The Highway Traffic Act 193(1) imposes a reverse onus on a driver who impacts a pedestrian on a public roadway."

    In other words, the driver is presumed negligent unless they can establish in court that they acted "reasonably and properly in the circumstance". The plaintiff (i.e. pedestrian or cyclist) need only prove that a collision occurred and caused the damages.

  2. "Pedestrians are assumed to act rationally and reasonably."

    In other words the motorist must prove that the pedestrian did not act rationally or reasonably. The actions of the pedestrian must be "unforeseen and unexpected". The fact that the pedestrian was negligent and unreasonable is not an acceptable defense if the driver could have reasonably anticipated the negligent action.

    Examples of actions that could lead to the pedestrian being considered at least partly liable include: suddenly running into the middle road for no reason, jogging across a crosswalk without looking while wearing headphones, or being intoxicated.

  3. "A higher duty is owed to pedestrians crossing at regular street crossings\pedestrian crosswalks. Although they still must exercise care, they have higher rights than if they attempted to cross elsewhere."

    Note that this implies that legally crossing at any intersection (even unsignalized) gives pedestrians higher rights, since a "regular street crossing" means "an intersection". The only case where motorists do not have this "higher duty" is when a pedestrian crosses mid-block (what is sometimes called jaywalking) where there is not a designated mid-block pedestrian crosswalk.

    This is the consistent with the Highway Traffic Act, which defines "crosswalks" to exist at all intersections, whether marked (controlled) or not. The fact that all intersections are "crosswalks" is crucial to understanding liability, and why Hamilton's courtesy crosswalks should not lead to a higher liability risk provided they are only implemented at intersections.

  4. "Even in circumstances where a Defendant driver failed to maintain a proper look out or was driving at an excessive speed, the Court has attributed a majority of liability to the Plaintiff where they did not cross at a crosswalk."

    This is quite shocking, but it seems to be the reasoning driving the City's legal interpretation. However, it hinges on what is defined to be a crosswalk (or "regular street crossing" above). Since the Highway Traffic Act defines crosswalks at all intersections (those without signals are termed "uncontrolled crossings"), the City's argument that crossing pedestrians only have right of way when legally crossing at a signalized intersection seems weak.

    However, the presentation does also use the term "designated crosswalk" (the designation is by the municipality). This implies that the City can designate crosswalks as they wish with signs and pavement markings, even mid-block, provided the designation is clear to motorists and pedestrians.

    This is what is done in many other municipalities in Ontario, and is the practice throughout Canada. But, once again, intersections or "regular street crossings" do not require special designation to give pedestrians higher rights.

  5. "The Supreme Court of Canada, in the cases of Petijevich v. Law [1968] S.C.J. No. 95, 1 D.L.R. (3d) 690 and Coso v. Poulos, 1969 CanLII 95 (S.C.C.), [1969], S.C.R. 757, has stated that once a pedestrian has safely entered a crosswalk, the pedestrian may assume that motorists will yield to the right of way and will share no responsibility if struck in a crosswalk."

    This is essentially what the MTO told us: the pedestrian must wait until there is a sufficient gap that the motorist can stop safely (it must not be "impractical" for the motorist to stop), and once crossing legally the pedestrian has right of way and will share no liability in the case of a collision.

  6. "Regardless of what the pedestrian is doing, if a driver is not keeping a proper look out or was negligent by speeding, a driver will be found at least partially liable."

    This reminds us that drivers must be alert, even for pedestrians behaving negligently (e.g. an 8-year old running out from a playground after a ball).

In summary, pedestrians legally crossing mid-block at "designated crosswalks" or at street intersections have much higher rights and consequently higher legal protection than pedestrians crossing elsewhere.

Courtesy Crossings

Hamilton is proposing new "courtesy crossings" for currently uncontrolled street intersections which are therefore locations where pedestrians (in principle) already enjoy higher rights and motorists have a higher duty. (The Toronto style PXOs with overhead lights are intended primarily for mid-block crossings.)

The City's Legal department recommends posting signs that read, "Caution - Vehicles Not Required to Stop" but this wording has not been finalized yet.

Over decades, Hamiltonian motorists have come to ignore their duty to yield to pedestrians crossing legally at intersections. Therefore, the key to enhancing pedestrian safety at these new "Courtesy Crossings" is to make it clear to the motorist that they are approaching a pedestrian crosswalk and that it is an area where they should be on the lookout for pedestrians.

With respect to municipal liability, it would be very difficult for a motorist to claim that they didn't know that an intersection painted with a zebra crossing and a sign saying "motorists must yield to crossing pedestrians" was a pedestrian crosswalk (and, in any case, it is still a "regular street crossing").

Note that the presentation and examples do not distinguish between crosswalks at uncontrolled intersections, pedestrian crossovers, and crosswalks at signalized intersections. The only requirement is that the crosswalk be "designated" or that it be a "regular street crossing".

It is important to remember that many (perhaps most) other Ontario municipalities have continued to designate even mid-block crosswalks with signs and painted lines, just like Hamilton did up to a decade ago.

Having such crosswalks at intersections, where motorists already have a duty to yield to crossing pedestrians, should not be a problem.

Adopting a new, even clearer, zebra crossing + "motorists must yield to crossing pedestrians/watch for traffic" McMaster/Mohawk type sign would be even better. It would definitely make walking safer and more convenient for pedestrians and remove confusion for motorists by reminding them exactly what their duties are.

'Caution: Stop for Pedestrians' sign at Mohawk College Fennell Campus (RTH file photo)
'Caution: Stop for Pedestrians' sign at Mohawk College Fennell Campus (RTH file photo)

Another advantage of designating more crosswalks is that motorists are legally required to exercise more care and attention in areas with high pedestrian activity. Having many crosswalks and other signs shows motorists that the area (e.g. downtown) is a neighbourhood with high pedestrian activity and they need to be extra careful.

The current policy of not including crossings, except where motorists already need to stop, sends the opposite message.

Finally, nowhere in the presentation did the author mention anything about liability for the municipality, even as as a separate issue. All cases considered how liability was divided between the pedestrian (plaintiff) and the motorists (defendant).

Many more specific precedent examples on pedestrian/motorist liability are given at http://carl-wais.com/blog/?p=105.

Nicholas Kevlahan was born and raised in Vancouver, and then spent eight years in England and France before returning to Canada in 1998. He has been a Hamiltonian since then, and is a strong believer in the potential of this city. Although he spends most of his time as a mathematician, he is also a passionate amateur urbanist and a fan of good design. You can often spot him strolling the streets of the downtown, shopping at the Market. Nicholas is the spokesperson for Hamilton Light Rail.

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By Joseph Forsyth (anonymous) | Posted November 11, 2013 at 06:31:48

I've always wondered why Hamilton has never adopted the push button - flashing crossing light (yellow x sign) that Toronto uses at intersections with no stop signs at various intersections.. I've always grown up with pushing a button, point, and was on my way.. Once I was across, traffic carried on, all was happy!
Guess it's expense, but it should be used as it worked!

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By mikeyj (registered) | Posted November 11, 2013 at 14:02:45

It would be interesting to compare other Ontario municipalities interpretations of 'uncontrolled intersections' to at least see if our Legal Department's opinion is common among its immediate peers.

Some quick searching found nothing clearly stated, but there does seem to be similarity's in the way Zebra Crossing use is mandated…

Brampton's 2010 Pedestrian Safety Plan and the interpretation seems similar to Hamilton's:

*"The Highway Traffic Act gives the right-of-way to pedestrians in the presence of and adherence to the following traffic control devices:

Pedestrian crossover Traffic Control Signals Mid-block Pedestrian Signal School Crossing Guard Stop sign controlled intersection"*

Unsigned intersections are not included, and later...

*"The following guidelines will be used to determine appropriate locations for Zebra Crosswalks in Brampton:

The crossing location must be controlled by a traffic signal or stop sign Where pedestrian crossing volumes are high In the presence of high right or left turn vehicle volumes Where there is a higher than expected number of pedestrian collisions

Zebra Striped Crosswalks will not be installed at locations without a traffic control device or at mid-block school crossings."*

Toronto seems to phrase their 2006 Zebra crossing literature similarly:

"The purpose of the zebra striped pedestrian crossing is to make the pedestrian crossing area more visible to drivers approaching a signalized intersection, and to remind them that they must watch for and yield to pedestrians in the crosswalk."

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By Ted Mitchell (registered) | Posted November 11, 2013 at 14:11:20

By the way check out today's Dreschel Dreck if you have the stomach for it.

http://www.thespec.com/opinion-story/420...

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By jonathan (registered) | Posted November 11, 2013 at 15:41:01 in reply to Comment 94636

What, specifically, do you have a problem with?

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By sleepwalking pedestrian (anonymous) | Posted November 11, 2013 at 15:57:58 in reply to Comment 94643

I don't know about anyone else but I have a problem with the part where he takes an entire article to complain about "sleepwalking pedestrians and arrogant cyclists" right after a study came out finding Hamilton is one of the most deadly cities in Ontario to walk or bike in. Tacky much?

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By DM (anonymous) | Posted November 11, 2013 at 16:26:34 in reply to Comment 94645

I've seen the article about the study, but I didn't actually see the study. Was there a link to the study itself?

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By Sara (registered) | Posted November 11, 2013 at 21:47:52 in reply to Comment 94646

The data presented last week to City council and to the media was a preview of an upcoming SPRC report. The deputation available on the SPRC website provides sources: http://www.sprc.hamilton.on.ca/2013/11/s...

There's no firm date for release of the full SPRC report yet, but should be in a few weeks.

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By DM (anonymous) | Posted November 17, 2013 at 19:18:02 in reply to Comment 94660

Sara, Are similar statistics prepared for other cities in Southwestern Ontario? Burlington, Milton, Brantford, London, Oakville using the same formula as Ontario vs. The City

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By DM (anonymous) | Posted November 11, 2013 at 23:21:22 in reply to Comment 94660

Thanks!

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By Cultosaurus (registered) | Posted November 11, 2013 at 15:02:20 in reply to Comment 94636

Comments with a score below -5 are hidden by default.

You can change or disable this comment score threshold by registering an RTH user account.

Comment edited by Cultosaurus on 2013-11-11 15:02:39

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By kevlahan (registered) | Posted November 11, 2013 at 14:45:58

As mentioned before on the RTH, the difference between crosswalks at signalized intersections and unsignalized intersections is that drivers must stop for waiting pedestrians at crosswalks at signalized intersections and allow them to cross, while at crosswalks at unsignalized intersections pedestrians must wait for a large enough gap that motorists have time to stop before starting to cross. In both case once pedestrians have started crossing, motorists must yield by slowing or stopping, even at completely unsignalized and unmarked intersections. This is absolutely clear in the Highway Traffic Act and in court cases.

For example, in http://www.canlii.org/en/on/oncj/doc/200... the judge confirmed that "undelineated" crosswalks defined under s. 1(1)(a) are “portions of a roadway are marked for pedestrian use” where, if there are no markings or signs, the crosswalk is "marked" by the extensions of the sidewalks on either side of the road.

Hamilton is not unique in only putting crosswalks only at signalized intersections, and indeed it seems a fairly common guideline throughout the GTAH, however many municipalities outside the GTAH do not follow this guideline.

A clear and simple McMaster style sign would remind drivers of their duty to yield to crossing pedestrians at all intersections, and remind pedestrians to "watch for traffic" or "ensure motorists have time to come to a safe stop".

The current situation has meant most motorists are unaware of their duty to yield to pedestrians crossing at an unsignalized intersection, and yet pedestrians still need to cross. This leads to especially dangerous situations for the elderly, children and disabled (who are slower or have difficulty judging speed) as well as at busier intersections where it may require waiting an unreasonably long time for a gap so large that traffic does not have to slow down or stop to allow a complete crossing.

Comment edited by kevlahan on 2013-11-11 14:59:19

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By MikeyJ (registered) | Posted November 11, 2013 at 18:14:22 in reply to Comment 94641

It wasn't made clear that Hamilton does seem to be following a common municipal legal interpretation of the Ontario Highway Traffic Act, not their own unique one.

This interpretation is somewhat supported by recent provincial recommendations discouraging "marked or unmarked uncontrolled crossings":

The Ontario Traffic Manual - Book 15: Pedestrian Crossing Facilities from Dec 2010, page 45:

"3.3 Uncontrolled Pedestrian Crossing

Uncontrolled pedestrian crossings are locations(other than a controlled pedestrian crossing as defined in Section 3.2) where pedestrian crossing activity takes place without traffic control measures to designate and assign the right-of-way for pedestrians at the crossing. Consequently, marked or unmarked uncontrolled crossings are to be discouraged where there is a higher likelihood of conflicts given the lack of formal right-of-way designation for pedestrians. Pedestrian crossings should be prioritized first based on consideration of implementing supporting traffic control measures as defined in Section 3.1.2, and provided that appropriate warrant and site conditions are satisfactory. Wherever possible, pedestrians are to be encouraged to use crossing locations with traffic control devices."

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By Kevin Love (anonymous) | Posted November 11, 2013 at 15:57:43

"... pedestrians behaving negligently (e.g. an 8-year old running out from a playground after a ball)."

Wow! Talk about blaming the victim. Needless to say, that is perfectly normal 8-year-old behaviour and not negligent at all.

Negligence occurs if a car driver drives through a residential neighbourhood or near a playground at such a speed that the car driver fails to allow for perfectly normal, reasonable and expected child behaviour such as running out onto the road.

Such a car drivers is, of course, criminally negligent and appropriate criminal charges need to be laid.

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By scenario (anonymous) | Posted November 12, 2013 at 04:20:29

i keep trying to wrap my head around this problem and how little concern there seems to fix this particularly destructive element in society. the best analogy i can come up with is imagining if car drivers were being injured and killed at the rate of pedestrians and cyclists by TRAINS. imaging if there were hundreds of uncontrolled unsignaled intersections that cars were forced to navigate daily with freight trains speeding by constantly. where motorists were routinely struck by trains and severly injured or killed? how much uproar would there be to solve that problem? would we still blame the driver for trying to drive around a city filled with trains? does not the city have a duty to create safe infrastructure to minimize the impact of the interaction between one mode of transportation which is inherently orders of magnitude more dangerous to another mode of transportation? should not the city act in all earnestness to protect that more vulnerable mode of transportation from the more dangerous?

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By mikeonthemountain (registered) | Posted November 12, 2013 at 15:21:57 in reply to Comment 94670

That is an excellent analogy. It is absolutely exhausting how much the victim is blamed. Shock jock quality articles are quick to show up in our newspapers blaming everybody except the root causes. They are truly exhausting and sickening. This region is truly stuck in an Idiocracy right now. How will it play out? Hard to say. Suburban rage is a big problem in elections, and it's directed at the victims, not the root causes. The thought of living in Ford Nation almost makes me suicidal. I hope the renaissance of sane people continues to gather steam. Now if you'll excuse me, I'm on the run from the Brawndo people for recommending water on farm fields.

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