Jay Breitkreutz - v. -, 2015 SKPC 148

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 201 5 SKPC 148 Date: October 20, 2015 File: 167/15 Location: Regina Saskatchewan _____________________________________________________________________________ Between: Jay Breitkreutz - and - Carson Bolen and Jake Barnes -and- Donald Ryan Gallinger Matthew Schmeling For the Plaintiff and the Third Party Ryan Gallinger (Defendant by Third Party) Steven Haichart For the Defendants (Plaintiffs by Third Party) JUDGMENT P. DEMONG, J

Introduction [ 1 ] On Saturday night, at about 11:30 p.m., November 23, 2013, a motor vehicle accident occurred at the intersection of Pasqua Street and Rochdale Boulevard in Regina. Three cars were damaged. Thankfully, only one person suffered any kind of significant injury. Each of the owners and drivers of the vehicles deny that they were in any way at fault for the accident. By separate actions (which have been consolidated because they have common questions of law and fact) each now seek damages from one or more of the other drivers.

This Court is called upon to decide which of the parties, if any, were negligent in the operation of their respective vehicles, and to what degree. The parties have agreed on the quantum of damages each are seeking. Evidence and Analysis [ 2 ] By Regina standards the intersection in question is larger than most. A Google over-head photograph of the intersection has been tendered into evidence.

All of the parties agree that for the purposes of this trial it accurately represents the layout of the intersection on the night in question. [ 3 ] The photograph identifies four lanes of southbound traffic on Pasqua Street as it approaches the Rochdale intersection. There is a dedicated left lane (SB1) which is separated from the other lanes by a long triangular median. To the right of this lane are three other lanes, two of them proceed directly through the intersection (SB2 and SB3) and the last, westernmost lane, (SB4) is a dedicated right turn lane allowing traffic to turn west onto Rochdale.

Vehicles travelling in this lane must turn right. If they do not they will collide with a solid concrete median on the other side of the intersection. [ 4 ] There are also four lanes of traffic northbound on Pasqua Street as one approaches the intersection. The lane closest to the median (NB1) is a dedicated left turn lane. Immediately to the right of this lane (NB2) is another dedicated left-hand turn lane. Immediately to the right is a third lane (NB3). Traffic in this lane proceeds north through the intersection.

The last lane (NB4) is a dedicated right-hand turn lane. [ 5 ] The intersection is controlled by traffic lights. [ 6 ] Ryan Gallinger was driving Jay Breitkreutz’s Kia Sorento motor vehicle. Jay was his front seat passenger. Ryan says that as he approached the intersection he was travelling in what I have described as SB2. He was not familiar with Regina and Jay was guiding him using a handheld GPS system. At about 200 metres from the intersection, Ryan says that Jay (who was following his handheld GPS) told him to change lanes to move into the lane to his right (SB3).

Ryan says that he shoulder checked, signalled and moved into that lane. Ryan says that as he did so he noted that the light was red at the Rochdale intersection, but it soon changed to a solid green light. [ 7 ] Ryan says that he approached the intersection at between 60 and 65 kilometres per hour. He says that he observed two vehicles, (later determined to be a silver Mazda owned and operated by Carson Bolen, and a grey Ford F250 truck owned and operated by Jake Barnes). These vehicles, were, he thought, stopped at the intersection attending on the red light facing north on Pasqua Street.

The Ford truck was in NB1, the first of two dedicated left-hand turning lanes. The Mazda was in NB2, the second dedicated left-hand turning lane. Ryan says that as he entered the intersection the front of his vehicle collided with the front passenger side of the Mazda. He says that the collision occurred about the middle of the northwest quadrant of the intersection, while he was in SB3. After hitting the Mazda, his vehicle spun 180 degrees and the back of the Sorento then collided with the middle of the passenger side of the Ford truck. He says his vehicle came to a rest facing north on Pasqua Street.

Photographs depicting the damage to each of the vehicles were tendered into evidence and the damage to each of the vehicles, as described by Ryan, is confirmed. Ryan concedes that as he was entering the intersection his right-hand signal light was still on. [ 8 ] Jay can add little to how the accident occurred. He was not watching the intersection and was instead focused on his GPS unit. He remembers Ryan exclaiming something and then says that he was briefly knocked unconscious.

He does however recall advising Ryan to change lanes because they were going to have to turn right a couple of streets after the Rochdale intersection.

[ 9 ] Ryan and Jay take the position that they had a green light as they entered into the intersection, and that notwithstanding that it was dark out, their speed of 60 to 65 kilometres an hour was not negligent. Because they had the green light, each maintain that neither Carson Bolen (driving the Mazda) nor Jake Barnes (driving the Ford truck) should have attempted to effect a left-hand turn directly into their path. Because they did so, they allege each are negligent and should be found entirely at fault for the collision. [ 10 ] I was impressed with each of Ryan and Jay’s demeanour.

Jay frankly conceded that he saw very little. Ryan in turn conceded that his speed may have been a little high. He did not try to hide the fact that his right turn signal was on as he entered the intersection. He is however adamant that he was in lane SB3 as he entered the intersection. [ 11 ] Carson Bolen was the owner and operator of the silver Mazda. She has lived in Regina all of her life. She says that she is familiar with the intersection where the accident occurred.

This notwithstanding the somewhat garbled evidence she gave in relation to the light sequencing which she says is usually a red light and simultaneous green turning arrow and sometimes a green light with a green turning arrow. [ 12 ] Carson says that at about the time and date in question she was driving home, with a front seat passenger by the name of Kat Chutskoff. She was driving northbound on Pasqua in lane NB2. As she approached the intersection she says that she was presented with a red light which she says turned solid green as she approached.

As such she entered the intersection from a rolling stop and proceeded to make her left-hand turn. She says that she did not notice the Sorento until she had entered the intersection. She says that the Sorento would also have had a green light. There was absolutely nothing in front of her which would have obstructed her view. She felt that the Sorento was travelling “not too fast”, perhaps 25 to 30 kilometres per hour. She maintains that she was unconcerned because, she says, the Sorento was in the right-hand turning lane, the lane I have described as SB4, a dedicated right-hand turning lane.

She maintains that because the Sorento had its right-hand turn signal on, she did not hesitate to make her turn. She concluded that if the Sorento turned right it would proceed in its dedicated westbound lane onto Rochdale. As she turned left, she would turn into her dedicated westbound lane on Rochdale. Each vehicle would have their own lane. [ 13 ] She states that she had her left signal light on and just as she was rounding her turn such that the nose of her vehicle was westbound, the two vehicles collided.

She places the collision at or about where Ryan says the collision took place but somewhat more to the west. According to her, she was just about out of the intersection when the collision occurred. [ 14 ] Originally Carson had indicated that the damage was to the passenger’s side rear of her vehicle. Were this true, and if she was in fact just about out of the intersection when the collision occurred, it would have added weight to her suggestion that the Sorento was travelling in the right-hand turning lane (SB4) just prior to the accident.

She later acknowledged, however, that the damage was in fact to the passenger’s side front of her vehicle. This, when considered in light of the fact that it is undisputed that the Sorento subsequently spun 180 degrees and remained on Pasqua Street facing north suggests to me that it is more likely that the Sorento was in lane SB3 when the accident occurred. I note also that if, as she suggests, the accident happened just as the front of her vehicle was facing west, then, according to the photographic evidence, the accident could well have occurred in the lane suggested by Ryan.

The photograph depicts a vehicle turning at approximately lane SB3 and the vehicle in that photograph is pointed almost due west. [ 15 ] I have some concerns with Carson’s testimony. I find it almost incredible that she would not have seen the Sorento until she entered the intersection. There was nothing to block her view. In addition, I am concerned that her recollection of what happened to her passenger after the accident is so at odds with what the other three witnesses say.

I am also concerned about her suggestion that the Sorento was travelling so much slower than that stated by each of the three other witnesses. [ 16 ] Kat Chutskoff was Carson’s front seat passenger. He confirms that as they approached the intersection they were presented with a red light. Unlike Carson, he is pretty sure, although not positive, that they were then presented with a green flashing arrow. He says that Carson started to accelerate up to a speed of perhaps 25 to 30 kilometres per hour as she rounded her turn and just before the collision.

He cannot estimate the speed of the other vehicle but concedes that it could have been going as fast as 60 kilometres per hour. He maintains that at no time did Carson apply her brakes. He inclines to the view that the Sorento was in the far right lane (SP4) with its right signal light on. He says that he observed that the Sorento was not slowing down and he knew a collision was imminent. He opined that under the circumstances as they unfolded, and that had he been driving, he could have avoided the collision. [ 17 ] The damage to the vehicles is significant.

There is substantial intrusion on the front side and door of the Mazda. Kat hit his head

during the collision and was bleeding from his head immediately following the collision. He says that he did not wish to stay at the accident scene to give a statement and instead asked Jake Barnes to drive him to his home a few short blocks away. He said he had no intention of being sent to the General Hospital or talk to the police. He didn’t think he was too badly hurt. Strangely, Ryan recalled that Kat stated that he wanted to go home to check on his kids. This conversation was echoed by Mr.

Barnes, who did in fact drive Kat home shortly after the accident and then returned back to the accident scene to speak to the police. Kat, however, denies that he made this statement about his kids and maintains that he has no kids. Carson gave a different story. She denies that he was driven home by Jake Barnes and instead, Kat simply walked home by himself before the police arrived. [ 18 ] Jake Barnes was the driver of the Ford F250 Truck. He was travelling northbound on Pasqua Street in the innermost left-hand turning lane (NB1). He says that he rolled up to the red light and waited for the light to turn.

He says that he was stopped for a short while and then the light turned to a green flashing arrow. He then started to turn, at a slow rate of speed. He was slightly behind and to the left of the Mazda. He says that he was about halfway into the intersection, travelling at about 15 kilometres per hour when he first saw the Sorento “blow through the intersection”. He watched as the Sorento t-boned the Mazda which was in front of him and to his right. The Sorento then spun around and the rear of the Sorento struck the middle of the passenger’s side of his truck.

He estimated the speed of the Sorento to be between 45 and 50 kilometres per hour. He believes that the Sorento was travelling in the far right lane (SB4). [ 19 ] Notwithstanding that his vision was never obscured as he waited at the red light, nor, because he was riding high in a large truck, as he proceeded through the intersection, he asserts that he did not see the Sorento until he was halfway through the intersection. Since the accident happened at or about that time, he had, in my estimation, a very short time indeed to analyse the speed or the lane in which the Sorento was in.

He can provide no answer as to why, with no other cars in the vicinity, and while riding high in his truck, and while facing north on Pasqua Street he did not see the Sorento approach until fractions of a second before the collision. [ 20 ] At this trial, Mr. Haichart, counsel for both Carson Bolen and Jake Barnes, has tendered contradictory evidence as to whether the light was solid green or a green flashing arrow as the vehicles entered the intersection. The evidence submitted by Mr.

Chutskoff on this point is rather less than compelling, mostly because he sustained a head injury in the accident and seemed to have acted in an unusual manner following the accident. He didn’t want to talk to the police. He didn’t want medical care notwithstanding a bleeding head injury. He referred to a need to attend on children which he doesn’t have. His evidence as it relates to the flashing green arrow directly contradicts the evidence of Carson. [ 21 ] I have similar concerns with respect to the evidence of Mr. Barnes.

He presented as an honest and forthright witness, but his evidence as to the colour of the light contradicts Carson’s evidence and Ryan’s evidence.

I have grave reservations about his degree of attention when for reasons he cannot explain, he failed to see the Sorento approaching until the very last second, notwithstanding that he was stopped at a red light for several seconds; notwithstanding that the Sorento would have been clearly visible to him as it approached; and notwithstanding that he then slowly and presumably carefully attempted to turn directly into the path of that same oncoming vehicle. [ 22 ] When I consider all of the evidence, and the demeanour of the respective witnesses I am satisfied that more likely than not, the light presented to each of the parties entering the intersection was a solid green. [ 23 ] I also have concerns with respect to the allegation that the Sorento was in the right-hand turning lane (SB4) as it entered the intersection.

First, neither Carson nor Jake appeared to be paying much attention to the oncoming Sorento until it was very near the intersection itself. Second, I find it difficult to rationalize how that vehicle could have been in the right-hand turning lane, hit a vehicle which was situated in that same lane, spin 180 degrees, hit another vehicle which was also in the intersection and somehow remain fully situated within the intersection facing north. [ 24 ] I had earlier indicated that this intersection is large, by Regina standards.

The Google photograph clearly shows that those vehicles northbound on Pasqua and turning left significantly offset the travel lanes proceeding in a southerly direction. That is to say, each of those turning lanes directly face the large median which separates lane SB1 with lane SB2. In the dark, close to midnight, and in light of the fact that neither Carson nor Jake even saw the Sorento approaching scant moments before the accident, I am satisfied that they could be innocently and honestly mistaken as to which lane the Sorento was in.

This, particularly in light of the fact that the Sorento’s right- hand signal light was on. [ 25 ] Carson Bolen and Jake Barnes carry the burden of convincing the Court that more likely than not the Sorento was in the right-hand

turning lane. This is disputed by Ryan Gallinger. The mechanics of the collision and ultimate resting place for the Sorento suggest to methat this was unlikely. At the end of the day I am simply not satisfied that Bolen/Barnes have discharged this evidentiary burden. [26] I am satisfied, more likely than not, that at 11:30 p.m. on a dark November 23, 2013 evening, Ryan Gallinger approached theRochdale intersection at a speed of between 60 and 65 kilometres per hour. I am satisfied that, more likely than not, he was proceeding inlane SB3, a southbound through lane at that intersection.

I am satisfied that as he approached the intersection the light turned from red tosolid green and that he entered that intersection at the speed referred to above and that he did so while his right-hand signal light wasactivated. [27] I am satisfied that Carson Bolen moved from a rolling stop at the red light when presented with a solid green light and accelerated toapproximately 30 kilometres per hour as she attempted to effect a left-hand turn directly into the path of the vehicle Ryan Gallinger wasdriving.

I am satisfied that she did so operating on the mistaken assumption that the Sorento was intending to turn right at theintersection, and that she thought she would be able to safely make her turn by staying in her appropriate lane. I am satisfied that hervehicle was hit in the front passenger’s side corner panel and that following that collision, the Sorento spun 180 degrees and hit the F250truck that Jake Barnes was driving, while that vehicle was slightly behind and to the left of the Bolen vehicle. I am satisfied that theSorento then came to a rest in the intersection pointing due north on Pasqua Street.

I am satisfied that neither Ryan Gallinger nor CarsonBolen took any steps whatsoever to avoid the collision, either by applying their brakes or taking evasive action. [28] I am satisfied that Ryan Gallinger was negligent in the operation of his vehicle when he chose to enter an intersection on a greenlight and to proceed directly through that intersection while at the same time evidencing to the world at large his intention to effect aright-hand turn.

He knew, or at least ought to have known that, at night, his failure to turn off that signal light would sow confusion inthe minds of other users of the highway, and that they would, more likely than not, operate on the reasonable assumption that he intendedto effect a right-hand turn at the intersection. I find support in this proposition when I consider the decision of Mr.

Justice MacLeod inZimmer v Koopman, (SKQB), a case which is almost, but not entirely, on point. [29] I am also satisfied that Carson Bolen was negligent when she entered into the intersection on a solid green light and attempted toeffect a left-hand turn directly into the path of the vehicle Ryan Gallinger was driving.

Section 219(3) of The Traffic Safety Act, cT-18.1SS 2004 obligates a driver who intends to turn left across the path of any vehicle travelling in the opposite direction to yield the right ofway and to not make the turn until the driver has afforded a reasonable opportunity to the driver of the approaching vehicle to avoid acollision. The case law is replete with dicta from our superior and provincial courts that a person intending to effect a left-hand turn infront of a person proceeding through an intersection on a green light carries a heavy onus of disproving negligence on his [her]

part if acollision occurs. (See generally Clark v Bowman, 2012 SKQB 423 ). Ms. Bolen has not discharged that onus. She had fullopportunity to observe the Sorento as it approached the intersection. She had full opportunity to gauge its speed. She had full opportunityto exercise vigilance and to slow down or take some other evasive action until she was certain of Ryan Gallinger’s intentions. Instead ofexercising that reasonable care and prudence she drove directly into the path of a vehicle travelling at twice the speed of her vehicle. [30] Even though Mr.

Barnes also attempted to effect a left-hand turn shortly after Ms. Bolen effected hers, I cannot attribute anynegligence to him. There is no evidence before the Court to show that when he was hit by the Bolen vehicle he was in the lane of trafficin which the Sorento was travelling. As such I simply do not know whether he had crossed over the centre of the highway or not.Therefore, notwithstanding his intent to turn left into the path of the Sorento vehicle, I cannot, on the balance of probabilities, say that hedid in fact do so. Conclusion [31] After considering the respective actions of each of Mr.

Gallinger and Ms. Bolen, I am satisfied that Ms. Bolen’s actions were themore negligent. I so find because Mr. Gallinger’s failure to turn off his signal light, while negligent, is more in the nature of an oversightthan an intentional decision to risk the property and potential life of another. Comparatively speaking, Ms. Bolen’s active decision to turnleft into the path of a faster moving vehicle before satisfying herself that her actions were in fact safe, exposed herself, her passenger,Mr. Gallinger and Mr. Breitkreutz to an unacceptable risk of injury and potential death.

I am of the view that she should bear 60 percentof the responsibility for the accident. I am satisfied that Mr. Gallinger should bear 40 percent of the responsibility for the accident. [32] Damages have been agreed to. Mr. Breitkreutz’s counsel has capped his client’s claim at $20,000.00. I award him 60% of thatamount, or $12,000.00 payable to him by Ms. Bolen. Pre-judgment interest on that amount, commencing November 23, 2013 equates to$185.63. In total, Mr. Breitkreutz is entitled to the sum of $12,185.63.

[ 33 ] Ms. Bolen’s damages equate to $4,148.00. I award her 40% of that amount, or $1,659.20. Pre-judgment interest on that amount equates to $25.67. In total I award her the sum of $1,684.87. [ 34 ] Mr. Barnes’ damages equate to $7,609.91. I award him that entire sum. Forty percent of that amount, or $3,043.96 of that sum is payable to him by Ryan Gallinger. Pre-judgment interest in that amount equates to $47.09, for a total award of $3,091.05. Sixty percent of that amount, or $4,565.94 is payable to him by Ms. Bolen. Pre-judgment interest on that sum equates to $70.63, for a total award of $4,636.57. [ 35 ] Mr.

Breitkreutz has asked for costs, and has calculated those costs, limited to out of pocket expenses, in the amount of his and Ryan Gallinger’s per diem expense in travelling from Edmonton to Regina and back to attend trial, and his costs to issue the original summons. This amounts to $672.00 and $100.00 respectively. As he has been partially successful, I award him 60% of those costs which equate to $463.20. [ 36 ] Carson Bolen and Jake Barnes have, jointly and severally, also asked for costs, also limited to out of pocket expenses. I have reviewed these items, which total $454.36.

As success was divided in these claims I award 40% of that amount, or the sum of $181.74. [ 37 ] During final argument counsel indicated that they would prefer it if the Court simply offset the costs and respective awards. I am not prepared to do so and leave it to counsel who presumably represent insurance companies, to complete this relatively simple task. P. Demong, J