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WPI 70.03 Right of Way of a Pedestrian Within a Crosswalk

6 WAPRAC WPI 70.03Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 70.03 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part VIII. Motor Vehicles

Chapter 70. Motor Vehicles

WPI 70.03 Right of Way of a Pedestrian Within a Crosswalk

A pedestrian within a crosswalk has the right to assume that all drivers of approaching vehicles will yield the right of way to the pedestrian. This right continues until the pedestrian knows otherwise or until surrounding circumstances should have alerted the pedestrian to the fact that an approaching vehicle is not going to yield the right of way to the pedestrian. Absent such circumstances, a pedestrian within a crosswalk has no duty to look for approaching vehicles.

NOTE ON USE

Use this instruction in all cases involving pedestrians within crosswalks. This instruction is not applicable if traffic control signals are involved or if the pedestrian fails to use an available pedestrian tunnel or overhead crossing.

Use WPI 70.03.01 (Driver Approaching a Crosswalk—Duty to Observe) and WPI 70.03.02 (Driver Approaching a Crosswalk—Duty to Stop) with this instruction.

Use WPI 70.03.04 (Pedestrian Crossing a Roadway Outside of a Crosswalk), as well as the appropriate definitional instruction from WPI 70.03.05 (Crosswalk—Definition) with this instruction if there is an issue as to whether or not a pedestrian was in a crosswalk.

See the Comment below when there is an issue as to whether the pedestrian should have observed oncoming traffic after entering a crosswalk.

COMMENT

Overview of the crosswalk instructions. In 2010, the WPI Committee substantially rewrote the crosswalk instructions in an effort to more completely explain the law in this area to jurors. These revised instructions set forth: a pedestrian's right of way in a crosswalk (WPI 70.03); the duties of a driver approaching a crosswalk (WPI 70.03.01 and 70.03.02); the duty of a pedestrian before entering a crosswalk (WPI 70.03.03); the law relating to pedestrians crossing a roadway outside of a crosswalk (WPI 70.03.04); and the definition of crosswalk (WPI 70.03.05).

WPI 70.03. Prior to 2010, the instruction set forth the statutory duties under RCW 46.61.235 of a driver approaching a crosswalk. These duties are now set forth in WPI 70.03.02 (Duty of a Driver Approaching a Crosswalk to Stop).

This instruction sets forth a pedestrian's right of way in a crosswalk based on the holdings of Jung v. York, 75 Wn.2d 195, 449 P.2d 409 (1969), Clements v. Blue Cross of Washington & Alaska, 37 Wn.App. 544, 682 P.2d 942 (1984), and Burnham v. Nehren, 7 Wn.App. 860, 863, 503 P.2d 122 (1972). These cases stand for the proposition that a pedestrian lawfully within a marked crosswalk has an “exceedingly strong” right-of-way, and has a right to rely on this protection and assume that drivers will respect it until the pedestrian knows or should know otherwise. See Burnham, 7 Wn.App. at 863. As stated in Jung:

A pedestrian cannot at one and the same time have a right to assume that the right of way will be yielded and a duty to look to make sure that it is. In the absence of circumstances which would alert the pedestrian rightfully in the crosswalk to the fact that an approaching vehicle is not going to yield, negligence cannot be predicated on his failure to look and see the vehicle in time to avoid the accident.

Jung, 75 Wn.2d at 198.

After entering a crosswalk and establishing his or her course, a pedestrian is not negligent for failure to keep a further lookout. See Jerdal v. Sinclair, 54 Wn.2d 565, 342 P.2d 585 (1959) (it was not negligence for a pedestrian to exercise his statutory right of way where, had he seen the automobile that struck him, it would have been permissible for him to assume that the driver would yield the right of way as required by law); Burnham, 7 Wn.App. at 863. In Jung, a woman entered a marked crosswalk. As she crossed, a car stopped, yielding the right-of-way. She proceeded in front of this car, entered the next lane, and was struck by a car. The Washington Supreme Court held that based on this evidence, Ms. Jung had no duty to stop at various points along the marked crosswalk and look for vehicles that might violate or disregard her lawful right-of-way:

[W]hether or not she could have avoided the accident by stopping one quarter of the way across the intersection and looking, it cannot be held that she had a duty to do so or that the jury would be justified in finding on the evidence in the record that she was negligent if she failed to do so.

Jung, 75 Wn.2d at 197.

In Clements v. Blue Cross of Washington & Alaska, 37 Wn.App. 544, 682 P.2d 942 (1984), the plaintiff-pedestrian attempted to cross four lanes of an arterial in Seattle within the crosswalk. As she crossed, a car stopped for her at the crosswalk. After passing in front of the stopped car, she was struck by a car traveling through the next lane. The evidence was “undisputed that Clements [the pedestrian] was looking straight ahead or down in front of her as she walked.” Clements, 37 Wn.App. at 550. As a matter of law, the pedestrian had no duty to try to observe oncoming traffic:

Plaintiff … asserts that the law does not impose a duty to look upon a pedestrian lawfully within a marked crosswalk even if the light changed against her as she crossed. Clements correctly states the general rule. See Riddel v. Lyon, 124 Wash. 146, 149, 213 P.487 (1923). Therefore, Clements' failure to look or to make any effort to observe oncoming traffic even after the light changed to red before she passed the stopped car, standing alone, does not amount to negligence.

Clements, 37 Wn.App. at 550.

On the other hand, a pedestrian in a crosswalk may have a duty to observe oncoming traffic in some circumstances. In Oberlander v. Cox, 75 Wn.2d 189, 193–194, 449 P.2d 388 (1969), a case decided on the same day as Jung, the Supreme Court held that the issue of a pedestrian's contributory negligence should have gone to the jury under the circumstances of the case:

Although the pedestrian crosswalk provides a strong protection, it is not an absolute sanctuary; and although reduced visibility—even in a heavy fog—does not lessen the right-of-way protection but engenders even greater vigilance on the driver's part, the circumstances and conditions prevailing at the crosswalk may require increased vigilance upon the part of the pedestrian, too.
Plaintiff said that she looked in both directions before stepping off the curb and into the crosswalk; the weather was foul and visibility diminished by a driving rain; she walked rapidly, carrying some packages; she did not look for approaching vehicles again apparently after entering the crosswalk. All of these circumstances, when related to the conditions prevailing, while not amounting perhaps to strong proof of contributory negligence, nevertheless supply some substantial evidence from which a jury could infer contributory negligence.

Oberlander, 75 Wn.2d at 193–94.

In some cases, it may be necessary to modify the instruction. In Hooper v. Corliss, 146 Wash. 50, 261 P. 645 (1927), a case predating the enactment of the pedestrian right-of-way statutes, the court held it was error to refuse a requested instruction that the rights of way are relative when both parties were claiming the right of way. On the other hand, when the pedestrian in the crosswalk was in plain view of the approaching driver such an instruction should not be given. Oberlander, 75 Wn.2d at 193–94; Daley v. Stephens, 64 Wn.2d 806, 394 P.2d 801 (1964).

A bicyclist in a crosswalk has the same right of way as a pedestrian. RCW 46.61.235; Pudmaroff v. Allen, 138 Wn.2d 55, 977 P.2d 574 (1999). RCW 46.61.235 was amended to include a “personal delivery device” as another entity protected in this crosswalk statute. Laws of 2019, Chapter 214, § 12. An additional definition of personal delivery device may be useful. RCW 46.61.733 and 46.75.010(4). See discussion in the Comment to WPI 70.02.04 (Right of Way—Emerging from Alley, Driveway, or Building in Business or Residence District) and the Comment to WPI 70.03.03 (Duty of a Pedestrian Before Entering a Crosswalk).

[Current as of February 2021.]

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