Does a defendant have to be 100% liable to a pedestrian who is not in a crosswalk?

In Kuharski v. Inder, [1986] B.C.J. No. 2762 (S.C.), the defendant was found 100% liable to a pedestrian, who crossed a street, not in crosswalk, but who had “gained so substantial a prior entry on to the highway that she had achieved the right-of-way.”

In Funk v. Carter, 2004 BCSC 866, a pedestrian was attempting to cross an intersection on a dark rainy night. The intersection had marked crosswalks on three sides, but no markings on the side at which the plaintiff crossed. The defendant's car hit the plaintiff while making a left turn through the intersection. The court determined that where a pedestrian has clearly established prior entry into an intersection, they need not surrender it to an approaching vehicle, even when not crossing at a crosswalk. Liability was apportioned 90% to the defendant and 10% to the plaintiff.

In Anderson v. Kozniuk, 2013 BCCA 46, the plaintiff pedestrian was initially crossing a roadway at an unmarked crosswalk in a well-lit intersection. After he started crossing, he veered diagonally across the road, leaving the unmarked crosswalk, to get to a bus stop. There was no evidence that the defendant tried to stop prior to the collision. The judge considered the plaintiff liable for failing to remain in the crosswalk, where he was more visible to traffic, and for not checking to make sure crossing outside the crosswalk was safe, but found the defendant liable for not maintaining a careful lookout and reducing her speed in an area where she should have known pedestrians were likely to be crossing. The court upheld the trial judge’s apportionment of liability 70% against the defendant, and 30% against the plaintiff. …