Rotzetter et al v. Mabley Date:, 2017 BCPC 29

Citation: Rotzetter et al v. Mabley Date: 20170206 2017 BCPC 29 File No: 40896 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: YVAN MARCEL ROTZETTER and RYAN EDWARD DALE PELTON CLAIMANT AND: EDWARD MABLEY DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.C. DICKEY Counsel for the Claimant: Mr. Nathan Van Kampen Counsel for the Defendant: Ms. Alissa Reynolds Place of Hearing: Kamloops , B.C. Date of Hearing: December 9, 2016 Date of Judgment: February 6, 2017

[ 1 ] This is a motor vehicle accident case with liability the sole issue before the court. The Claimants, Yvan Marcel Rotzetter and Ryan Edward Dale Pelton are seeking a finding that Edward Mabley was solely responsible for a motor vehicle accident that occurred on November 17, 2010. Mr. Pelton was the driver of the subject vehicle and Mr. Rotzetter the registered owner. The Defendant Mabley was the driver of the other vehicle involved in the accident; he seeks a finding that Mr. Pelton was solely responsible. Circumstances [ 2 ] Mr. Mabley and Mr.

Pelton have provided different versions of what occurred on the night in question. The parties agree on certain aspects and differ on others. Mr. Pelton was driving a pick-up truck that was pulling an enclosed trailer. Mr. Mabley was driving a pick-up. It had snowed earlier that day but had stopped at the time of the accident. It was dark. Both vehicles were travelling northbound, and Mr. Pelton’s vehicle attempted to turn left. Just prior to this, Mr. Mabley appears to have decided to pass the Pelton vehicle. The Mabley vehicle struck the Pelton trailer knocking the trailer from the truck. [ 3 ] Mr.

Pelton described the road conditions as terrible, slippery, and with compact snow. He says as he travelled northbound he had his four way flashers on. Mr. Pelton says he was aware of a driveway approaching on his left in which he could turn around and then travel southbound. He agreed in cross that if one didn’t know the area then one wouldn’t know of the driveway. He also agreed the driveway was difficult to observe especially at night. He says he turned his four way flashers off and turned his left turn signal on.

In his statement to an ICBC adjuster, he says this was approximately 500 yards before the turn off, although in his statement to the police he says it was approximately 200 yards before, and in his evidence at trial it was 300 to 400 meters. Mr. Pelton says he is certain he turned the four way flashers off because his left turn signal would not work if the hazard lights were on. He says the lights on the trailer were working and the left turn lights would be flashing on the mirrors of his truck which were extended. [ 4 ] Mr.

Pelton says he slowed his vehicle down as he approached the driveway, estimating his speed at 5 to 10 km per hour when making his turn. [ 5 ] In Mr. Pelton’s testimony at trial and in his statement to the ICBC adjuster he says he observed a vehicle approach him from behind and slow down. He says that this vehicle then appeared to be going at the same slow speed that he was travelling. He says the vehicle was behind him for a “long ways”. Mr. Pelton says in his statement he then checked his mirror again and observed that the vehicle continued travelling at the same slow speed as him. Mr.

Pelton says he then began his turn to the left into the driveway. At trial he says he checked his mirrors before passing but admitted that he did not say this in his statement to the police. He explained the statement to the adjuster was more thorough. He says at trial he was unable to remember if he shoulder checked, or checked his mirrors, but it is something he always does. He says before he began his turn he was in the only tracks going northbound and that he never travelled on the shoulder of the road. He says that he could have driven the truck and trailer completely off the road into the driveway. Mr.

Pelton says as he entered into the driveway the truck behind struck the front of his trailer where the hitch was located. He says his truck was completely off the road when he was struck. He says he never saw the Mabley vehicle in the southbound lane. He says he now knows the Mabley vehicle was in the southbound lane at the time of the accident because that is where it was located when it struck his trailer. [ 6 ] There was argument and confusion on whether Mr. Pelton was making a “u-turn” or whether he was turning into this driveway so that he could turn around and then go southbound. Mr.

Pelton at trial said his intention was to turn into the driveway, drive to a small area just off the road which allowed him to turn his vehicle and trailer around, and then re-enter the highway and travel southbound. Mr. Pelton says there is no way he could have done a u-turn in this area of the highway. There appears to have only been one lane going north and south at this point of the highway. [ 7 ] Mr. Pelton initially described what he was doing as a u-turn to the police officer. Mr. Pelton later provided recorded statements to the police and to the ICBC adjuster. Mr.

Pelton in his recorded statement to the police, shortly after describing this as a u-turn to the officer, explained what he meant by this was the description stated at trial. Mr. Pelton also originally described this as a u-turn to the ICBC adjuster in his statement of November 19, 2010, but then explained what happened in a similar description to that set out above. The evidence of Mr. Mabley (see p.3 of his ICBC statement) and Mr. Pelton is that the truck was all the way into the driveway when the collision occurred. Mr.

Mabley also says that when he was in the southbound lane, he saw the Pelton vehicle in front of him, and Mr. Mabley attempted to go to his left to enter the driveway and avoid the accident. He in fact then appears to have realized this was not possible and struck the Pelton vehicle at the front of the trailer. There does not appear to have been any damage to Mr. Pelton’s truck.

The photos support this in that the Mabley vehicle is off the side of the road of the southbound lane. [ 8 ] I conclude that the evidence that the Pelton vehicle was in the driveway and that the Mabley vehicle was travelling in the southbound lane at the time of the accident and struck the front of the trailer, is inconsistent with the Pelton vehicle pulling a u-turn. This evidence is consistent with Mr. Pelton’s description at trial of what occurred. If Mr. Pelton was attempting to pull a u-turn, his truck would not have entered the driveway as both Mr. Mabley and Mr. Pelton describe. I find that Mr.

Pelton’s use of the term “u-turn” was a misstatement, which he soon after corrected, and which is supported by the evidence. I also find that his use of this term does not affect his credibility. [ 9 ] Mr. Mabley’s evidence was admitted by the parties by the filing of a transcript from an examination for discovery that occurred on February 28, 2012. The transcript involves the same accident, but different litigation. [ 10 ] Mr. Mabley says there were about five accidents that he passed that evening. He describes the roadway where the accident occurred as having a light slush on it.

He describes the road as “sloppy”. He says the shoulders of the road were quite distinct because of the fresh snow on it. Mr. Mabley and Mr. Pelton agree that it was neither raining nor snowing at the time of the accident. Mr. Mabley says in his statement to ICBC that he had not exceeded 80 km per hour for the previous ½ hour because the road conditions weren’t “that great and it was a croaked (sic) road and some bad corners”. [ 11 ] Mr. Mabley says he saw Mr. Pelton’s four way flashers from about 500 meters away.

He says he did not know why the vehicle had its four way flashers on or why it was travelling slowly. He says he slowed down. He says he never slowed to the same speed as

the Pelton vehicle, but was “always going a little bit faster than it was” estimating his slowest speed at 30 kilometres per hour. He saysthe Pelton vehicle was over in the far right lane and “almost completely stopped”. He later explained that the Pelton vehicle was where“you would park safely”. In his ICBC statement, however, he describes the Pelton vehicle as “travelling on the extreme right up againstwhere the shoulder would start, where the snow was”. He says that to get by the Pelton vehicle he would have to go by in the oncominglane “a bit… to put distance between us of course”.

He says he couldn’t see anything in front of the Pelton vehicle, and there were novehicles approaching, so he decided to go around the Pelton vehicle. He says he was uncertain as to why the Pelton vehicle wastravelling with its hazard lights flashing. He says he had to pull out to try and see if the Pelton vehicle struck something. He says he wasseveral truck lengths behind when he pulled out to pass the Pelton vehicle. He says he turned his signal light on as he passed but did nothonk or flash his lights.

He says in his statement to ICBC that he accelerated from 35 kilometres per hour to 60 kilometres an hour, but inhis examination for discovery he says that was a guess but acknowledged he wanted to get around him “as quickly as I could”. [12] Mr. Mabley says he was one pickup length from the rear of the trailer when he first observed that the Pelton vehicle was goingto make a left hand turn. In his statement to ICBC, he says he wasn’t all the way into the southbound lane and just coming up to thePelton vehicle when the Pelton vehicle was “trying his u-turn”. [13] Mr. Mabley was asked if he told Mr.

Pelton following the accident that he did not see his signal light until the last second. Mr.Mabley responded that he said to Mr. Pelton “If I had it on, I wouldn’t have seen it until the last second”. He then said he told Mr.Pelton that he never saw his signal light come on. [14] Mr. Mabley says he had time to “observe the front of the pickup coming around”, but then says he first saw the “wholebroadside of the pickup crossways on the road”. In his statement to ICBC he says he first saw the Pelton headlights shine in thedriveway. He then tried to go around it by driving towards the driveway.

In his statement to ICBC he says the truck and trailer wereblocking the “entire two lanes”. He says he slammed on his brakes and he was able to slow somewhat. He says he struck the front ofthe trailer with the right front of his vehicle and on a bit of an angle. After the accident the Pelton truck was “sitting in the driveway”. Law [15] The Claimant and Defendant have each provided a number of cases and the relevant sections of the Motor Vehicle Act. I willonly refer to those cases that assist in my analysis.

This case, as is often the situation in determining liability in motor vehicle accidents,is fact dependent. [16] Sections 157, 159 and 166 of the Motor Vehicle Act are relevant to the matter before me. I find that

section 168 is not relevantas I have found that Mr. Pelton was not attempting a u-turn, or “reverse turn” in these circumstances.

Section 159 requires the driver of apassing vehicle to only do so when it can be done “in safety”.

Section 166 requires the driver of a vehicle not to turn left from a highwayunless “the driver causes the vehicle to approach the place on the portion of the right hand side of the roadway that is nearest the markedcentre line, or if there is no marked centre line, then as far as practicable in the portion of the right half of the roadway that is nearest thecentre line”.

The driver must also ascertain that the movement can be made “in safety, having regard to the nature, condition and use ofthe highway and the traffic that actually is at the time or might reasonably be expected to be on the highway”. [17] The Claimant has referred me to the following cases: Shallow v. Dyksterhuis, 2013 BCSC 1761 , 2013 B.C.S.C. 1761, 233 A.C.W.S. (3d) 1033 Tabori v. Renaud, 2016 BCSC 1242 , 2016 B.C.S.C., 1242, 268 A.C.W.C. (3d) 691 Samograd v. Collison (1993), [1995] B.C.W.L.D. 1607, 51 A.C.W.S. (3d) 1395 (B.C.S.C.) Samograd v.

Colison (1995), (BC CA), 17 B.C.L.R. (3d) 51, 67 B.C.A.C. 223 (B.C.C.A.) Ekman v. Cook, 2013 BCSC 2027 , 2013 B.C.S.C. 2027, 234 A.C.W.C. (3d) 1082 Link v. Insurance Corporation of British Columbia, 2015 BCCA 509 , 2015 B.C.C.A. 509, 261 A.C.W.S. (3d) 766 Ali v.

Fineblit, 2015 BCSC 1494 , 2015 B.C.S.C. 1494, 257 A.C.W.S. (3d) 494 [18] My understanding of the cases is that the driver who has the greater obligation, depending on the circumstances, is the one whohas the “better opportunity to see the potential for a collision and therefore a greater opportunity to avoid it” (Shallow, para. 15). [19] The Claimant relies upon the case of Ekman for the principle that in a situation where the lead driver has slowed almost to astop that it is “incumbent upon drivers who are uncertain as to what is going on ahead of them on a highway to proceed with cautionwhen attempting to pass” (para.78).

Madam Justice Gerow in Ali relied on a similar approach in finding the overtaking driver 100% atfault. [20] The Defendant has referred me to the following cases: Perrin v. Lefebvre, 2012 BCSC 1638 , 2012 B.C.S.C. 1638, [2012] B.C.J. No. 2278 Hough v. Wyatt, 2010 BCSC 1375 , 2010 B.C.S.C. 1375, [2010] B.C.J. No. 1946 Varzari v. Vinh, 2004 BCSC 641 , 2004 B.C.S.C. 641, [2004] B.C.J. No. 965 Crevier v. Thompson, 2015 BCSC 1552 , 2015 B.C.S.C. 1552, [2015] B.C.J. No. 1866 Wiebe v. Greyhound Bus Lines of Canada Ltd., [1995] B.C.J. No. 2582

Watt v. 417698 Alberta Ltd., 2006 BCSC 677 , 2006 B.C.S.C. 677, [2006] B.C.J. No. 985 [21] The Perrin, Hough, and Varzari decisions involve circumstances where the leading vehicle was making a u-turn and as such arenot helpful in the case before me. [22] Mr. Justice Brecken, in Crevier, found in the circumstances that it made little difference whether the lead vehicle was trying tomake a u-turn or a left turn. The accident occurred at an intersection, unlike the case before me. In this case Mr.

Justice Brecken foundthat the lead driver bore the greater responsibility but that the overtaking vehicle was 10% at fault. The lead vehicle had slowed andmoved slightly to the right although did not signal. Analysis [23] Credibility and reliability of the parties is a critical analysis in this case. Mr. Pelton says he put on his left turn signal well inadvance of making his turn. Mr. Mabley says he did not. This is a significant aspect of any finding of liability. On the evidence there isnothing which would suggest that either party is not being credible. Mr.

Pelton admitted that liability could affect his employment, but Ifind both parties could be affected negatively by being at fault. [24] I find the issue in assessing the evidence of both parties is the reliability of their evidence. I must look at the whether thewitness’ evidence is reliable in the circumstances. This assessment includes factors such as whether their evidence was consistent, andmakes sense. [25] I was concerned with some of the evidence of Mr. Mabley. He said a number of things with respect to when he first saw thatMr. Pelton was turning.

He said in his EFD transcript that he had time to “observe the front of the pickup coming around”, but then sayshe first saw the “whole broadside of the pickup crossways on the road”. In his statement to ICBC he says when he accelerated to pass hefirst saw the Pelton headlights shine in the driveway, and that he was not all the way into the southbound lane when this occurred.

I amconcerned with the lack of consistency of this evidence. [26] The evidence of first seeing the headlights in the driveway is also concerning because it suggests that he was not looking at thePelton vehicle as he passed, but rather to his left. This evidence also suggests that he saw the Pelton vehicle turning before he even hadleft the southbound lane. [27] I’m also concerned with the reliability of Mr. Mabley’s evidence of what occurred when he went to pass the Pelton vehicle.

Hesays the Pelton vehicle was almost completely stopped when he commenced his pass and estimates that he was one pick-up length fromthe rear of the trailer when it began its left turn. At this time he says he was accelerating from 35 to 60 km per hour, or as “quickly as Icould”, and the Pelton vehicle was almost stopped. He also says it was to the far right of the northbound lane. Despite this by the timeof the collision he says the Pelton truck had moved across two lanes of the highway entering the driveway on the east side of thehighway.

It seems highly unlikely that this could have happened based on the positioning of the vehicles, and distances and speedsestimated by Mr. Mabley. [28] I find the evidence of Mr. Pelton is in accordance with the preponderance of probabilities. His evidence made sense to me. Hehad difficulty remembering certain evidence but that would only be reasonable when one is trying to recollect an accident from six yearsprevious.

The timing of how the accident occurred, when taken into consideration with where the Mabley vehicle struck the Peltonvehicle, appears more consistent with the Pelton version of how this accident occurred. For these reasons where the witness’ evidence isinconsistent I accept the evidence of Mr. Pelton. [29] On the issue of if or when Mr. Pelton turned his left turn lights on, the physical evidence does not assist. The evidence of thewitnesses also does not provide any assistance in this analysis. As noted above I do accept the evidence of Mr. Pelton where it varieswith that of Mr. Mabley as it does on this issue.

What both parties agree to is that Mr. Pelton either had his hazard lights on, or his leftturn signal, at the time of the accident. Mr. Mabley was uncertain as to why the Pelton vehicle had its hazard lights on. The roadconditions were suspect at the time. Despite this Mr. Mabley accelerated from 35 to 60 km per hour, or as quickly as he could, to movepast the Pelton vehicle that was almost stopped. I find Mr. Mabley’s speed, and his increase in speed, to be negligent when one ispassing a vehicle in these circumstances. I find in all of the circumstances that Mr.

Mabley was negligent in passing the Pelton vehicle. [30] I also accept that Mr. Pelton had his left turn signal lights on when Mr. Mabley went to pass the Pelton vehicle. I find Mr.Mabley did not see that the right turn signal light had stopped leaving the left turn signal light flashing. Mr. Mabley therefore wasnegligent in not seeing what was there to be seen. In the alternative, if the hazard lights were on, I still find that Mr. Mabley wasnegligent in passing in the circumstances set out above. Passing a vehicle with its hazard lights on in the conditions noted should onlyoccur with the greatest of caution.

I find that Mr. Mabley did not exercise the caution required and passed in an unsafe manner. [31] On the findings set out above, I do not find Mr. Pelton liable for the fault of this accident. Decision [32] I find the Defendant Edward Mabley solely at fault for this accident for the reasons stated above. The Honourable Judge R.C. Dickey Provincial Court of British Columbia