Pedestrian Injuries and Cellphones
Last year, 42 pedestrians were killed on Toronto streets, despite the launch of Mayor Tory’s “Vision Zero 2.0,” a revamping of this program designed to reduce pedestrian and cycling fatalities in our city. On average, six pedestrians per day are hit in Toronto. There are many reasons why pedestrian injuries and deaths continue to occur here, including streets designed for cars, speeding motorists, drunk driving, and driver inattention. However, in recent years, a great deal of attention has been devoted to pedestrian use of cellphones.
A 2015 report by Toronto Public Health that examined pedestrian and cyclist deaths in the city found that "inattentive" pedestrians were about 40%more likely to be injured or killed in a collision with a vehicle. And in 2017, Toronto MPP Yvan Baker introduced a bill nicknamed the "Phones Down, Heads Up Act," which attempted to introduce fines of up to $125 for pedestrians who were caught looking at their phones while crossing the street. These so-called “zombie laws” have been passed in various other jurisdictions (such as Hawaii) in recent years.
Critics of this bill pointed out that the average age of pedestrians killed during the year the bill was introduced was 68 – an age demographic not usually associated with constant cellphone use. As one Twitter user noted, “Grandma is not checking her Instagram. She's trying to get across a street that is not designed to accommodate anyone but people in cars." And a New York City study found that only 0.2% of pedestrian fatalities in that city were caused by a distracted walker. Private members’ bills are rarely signed into law, and the legislature adjourned before debating Baker’s “Phones Down, Heads Up” proposal. The MPP himself admitted that the proposed law would be difficult to enforce, but felt it was worthwhile as an effort to educate people about the problem. Certainly, crossing the road while staring at a cellphone screen does pose a risk – and now if you are injured when engaging in “distracted walking,” there may be consequences for your insurance claim, too.
Insurance Claims and “Distracted Walking”
Some personal injury lawyers fear that pedestrians injured (or families of those killed), while using their cellphones could see a reduction in the amount of damages they receive. While drivers must still prove that they were driving with due care and attention, distraction might be treated as evidence used to prove that the pedestrian had some responsibility for their own injuries, even if they had the right of way at the time they were struck. Defense lawyers might try to equate distracted walking with a cyclist not wearing a helmet, or a passenger not wearing a seatbelt. In this way, using a cellphone while crossing the street could be used as evidence of “contributory negligence.” This defense is often used when it’s found that a plaintiff in a motor vehicle was not wearing a seatbelt. The defendant can then argue that the plaintiff’s injuries would have been much less serious had they been safely buckled in, and therefore, the plaintiff bears part of the responsibility for their injuries. If the court finds, for example, that the plaintiff was 50% responsible, the defendant would only be responsible to pay half the damages.
If a defendant plans to pursue this line of defense, it will probably become obvious at the discovery stage. The defense may even be able to request cellphone records to see if they were texting at the time of the collision. Although this argument has not yet been successful in Ontario, over the past decade, three BC cases involved pedestrian plaintiffs, whose damages were reduced due to contributory negligence. In one, the plaintiff was talking on the phone, another dropped their phone, and the third was simply listening to music on earphones.
Working with a Personal Injury Lawyer
Whether or not you were using a cellphone, if you have been injured in a pedestrian accident, it’s important to speak with a personal injury lawyer as soon as possible. Lawyers who focus on this area of practice are knowledgeable about the legal system, the medical system, and the insurance system, since all are involved in resolving claims. A good personal injury lawyer can not only give you advice about how to proceed, depending on the circumstances of your case, butthey can also become a source of information and help for your family. Lawyers who chose this area of law know that they usually meet clients at a low point in their lives – they may be in pain, adjusting to a new reality, and under financial and emotional stress. They have empathy for your situation, and will work hard on your behalf.
An initial meeting with a personal injury lawyer is free, and most work on a contingency basis, which means that they don’t get paid until you receive a settlement. Call a personal injury law firm today, and get the compensation you deserve.