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‘Zombie Law’ should stay dead: Derfel

Ontario’s "Zombie Law" is dead and resurrecting the proposed legislation that would have tackled distracted walking isn't necessary, says Toronto personal injury lawyer David Derfel.

The private member's bill, known as the Phones Down, Heads Up Act, simply reiterates what is currently available to law enforcement, says Derfel, founder and principal of Derfel Injury Lawyers.

Bill 171, which stalled after first reading last October, died when the provincial election was called. It would have imposed fines of between $50 and $125 for anyone using electronic devices while crossing the road, according to a CBC report.

"I have mixed feelings about legislating pedestrians” to keep them from using their phones while walking about town, Derfel tells AdvocateDaily.com.

The bill was created as a response to the high numbers of pedestrians killed in traffic mishaps in Toronto, he says.

Toronto Police statistics show 43 pedestrians were killed and 128 suffered severe injuries in 2016 — 36 died and 115 seriously hurt last year — although the number caused by distracted walking is unclear. A 2010 Ontario Coroner's report found distracted walking, such as when using a hand-held device, was involved in about 20 per cent of 95 pedestrian deaths in the province that year.

Derfel says there are two components to traffic mishaps — provincial offences and civil.

"With provincial offences, even if somebody is so-called 'zombie walking,' but doing so while he has the right-of-way, and a driver hits him, the driver may still be responsible," he says. 

The civil aspect is not an either/or proposition but rather a sliding scale of responsibility, Derfel says. Someone who "completely seals themselves off from the world — even when they have the right of way — will bear a portion of responsibility if they're struck by a vehicle," he says.

"In the civil context, if someone's wearing a hoodie, listening to headphones and reading their Twitter feed, and they walk into the street, even if they have the right-of-way, they will bear some responsibility for what happens because they failed to take all reasonable precautions," Derfel says.

Pedestrians can't just assume cars are going to stop for them, he says.

Derfel says he doesn't believe introducing another Zombie Law following the provincial election is necessary as it would just add rules where there is already legislation in existence. Educating pedestrians about distracted walking is what is needed, he adds.

"If someone is jaywalking or walking against a light, then they're going to get a ticket," he says.

"If someone's walking outside the pedestrian crosswalk, they're going to get a ticket and it doesn't matter if they're a zombie walker or not," Derfel says.

Motorists are required to follow the rules of the road if a person runs into the path of a vehicle, he says. 

"All motorists must follow the rules," Derfel says. "The zombie walker is no different. It doesn't matter if they have headphones on or not."

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