Driver Asks For Action To Be Dismissed In Light Of Having Right Of Way
Even the most careful drivers can find themselves involved in motor vehicle accidents. A person’s actions as a driver (or pedestrian, or biker, etc) may determine whether or not they are at fault for an accident. However, even having the right of way may not be enough to avoid court, as was recently seen in a decision for a motion for summary judgment in a case before the Ontario Superior Court of Justice.
The accident occurred when a passenger, who was riding a bus, exited the bus and attempted to cross the street. He passed in front of the stopped bus when crossing, but was hit by a car that was driving the same direction as the bus, but in the lane adjacent to it. It appeared that the light had turned red for the passenger, and green for both the bus and the car just before the passenger attempted to cross the street. The driver of the car attempted to brake, but was unable to stop before hitting the passenger. The impact of the collision threw the passenger into the air and into the path of another bus, traveling in the opposite direction. The second bus was able to stop, but the passenger still suffered multiple injuries.
Motion to Dismiss
The passenger filed a suit against the driver of the car. In response, the driver brought a motion for summary judgment to dismiss the action against him. The driver’s position was that the light had turned green and he was “entitled to proceed on the assumption that he had the right-of-way and that others would follow the rules of the road.” There were also questions about whether the passenger had run, or walked across the street.
The passenger, meanwhile, submitted that even if he had crossed a red light, a trial would be needed in order to determine if and to what degree the driver was contributorily negligent. This included questions around whether the driver was speeding as he approached the intersection, and whether the driver kept a proper lookout. An empty beer bottle had also been found in the driver’s side door of the car.
The court’s analysis
The court first looked at the issue of the driver’s speed. The posted speed limit was 50km per hour. An expert hired by the passenger stated the driver was traveling between 54 and 58 km per hour. In the expert’s opinion, had the driver been traveling at 50 km per hour, it was likely that the passenger would have had enough time to cross the street before being hit. Meanwhile, the driver stated he was driving at only 45km per hour. An expert hired by the driver said he was driving 50 km per hour and had applied the brakes within a reasonable reaction time after seeing the passenger.
The judge noted that both experts were highly qualified at accident reconstruction, but highlighted the different approaches each expert took when recreating the event. This included using different camera angels and reference points to determine the driver’s speed. They also had different opinions about the speed the passenger was traveling at. The court found these to amount to complex factual issues that are best resolved at trial. The judge explained,
“Judges are not accident reconstructions experts. While I may be numerate, my math skills, like those of the majority of lawyers and judges I have encountered, are not particularly sophisticated. I cannot perform or assess, on my own, complex mathematical calculations such as, for example, those required to calculate the difference that a rounded or square corner of a car would have on its speed. Whatever understanding I would derive from reading about complex mathematical calculations in an expert’s report would be haphazard. Counsel spent no material time during the motion walking me through the reports, explaining the calculations or demonstrating why one set of calculations was superior to another, other than the assertion by one side that using several reference points to calculate the speed of (the driver’s) car was preferable to using only one reference point. While even that last proposition might sound ‘right’ to a lay person, it is not necessarily so. Having several misleading reference points is not better than one reliable reference point. By that I do not mean to suggest that the expert who used several reference points used misleading ones. My point is simply that I have no level of confidence that my determination of that or any of the other issues involving the experts would be ‘fair and just’ based simply on my reading of the reports.”
Regarding the other factors raised by the passenger, the judge found that the witnesses who could testify about the speed the passenger was walking or running should be cross-examined; something that had not happened at that point. In addition, the finding of the beer bottle created an issue of credibility relevant to the allegations of contributory negligence.
The court found that the issues were complex enough to warrant a full trial, and that no time saving would occur by a mini-trial. The motion for summary judgment was dismissed.
It is important to seek medical attention if you find yourself injured in an automobile accident. After making sure that your health is taken care of, your next step should be to speak to an experienced personal injury lawyer. At Derfel Injury Law, we provide exceptional legal advice for people injured in automobile accidents or any other number of ways. We help our clients seek every available avenue of compensation, leaving no stone unturned. Please call us at 416-847-3580 or find us online to talk today.