Annette Kopp Plaintiff - v. -, 2017 SKPC 096

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2017 SKPC 096 Date: December 13, 2017 File: 17 - 0400 Location: Prince Albert _____________________________________________________________________________ Between: Annette Kopp Plaintiff - and - Vadim Zaskovets and Svetlana Zaskovets Defendants Annette Kopp For the Plaintiff Vadim and Svetlana Zaskovets For the Defendant ______________________________________________________________________________ JUDGMENT S.D. SCHIEFNER , J ______________________________________________________________________________ [ 1 ] Annette Kopp (Ms.

Kopp) brings this action against Vadim Zaskovets and Svetlana Zaskovets for damages arising out of a motor vehicle accident that occurred on November 21, 2016. The accident occurred at the intersection of 15 th Street and 6 th Avenue East in Prince Albert, Saskatchewan. Ms. Kopp was driving a 1999 Ford F250 Extended Cab. She approached the intersection on 6 th Avenue from the south and was attempting to make a left hand turn onto 15 th Street to go west. Svetlana Zaskovets (Ms. Zaskovets) was driving a 2011 Chevy Cruze owned by Vadim Zaskovets (the Zaskovets vehicle). Ms.

Zaskovets approached the intersection on 6 th Avenue from the north and was driving straight through the intersection heading south. [ 2 ] Simply put, Ms. Kopp alleges that the Zaskovets vehicle entered the intersection when the traffic light was red, that the driver lost control of her vehicle in rainy, icy conditions and that the Zaskovets vehicle collided with Ms. Kopp’s truck while it was stopped waiting to turn left.

[ 3 ] For the reasons that follow, I dismiss Ms. Kopp’s claim and find in favour of the defendants. EVIDENCE, ANALYSIS AND FINDINGS OF FACT IN RELATION TO ACCIDENT [ 4 ] The intersection of 15 th Street and 6 th Avenue East is a large intersection by Prince Albert standards. On both 15 th Street and 6 th Avenue, there are four lanes approaching the intersection from each direction. When approaching the intersection from any direction, the far left lane is a dedicated left-turning lane. The two center lanes are for travelling straight through the intersection. The far right lane is a dedicated right-turning lane.

The intersection is level and all sightlines are straight without obstruction. [ 5 ] Ms. Kopp testified that she is familiar with this intersection and on the day in question she was northbound on 6 th Avenue heading to Superstore at about 6:00 p.m. To get to her destination, she was required to turn left onto 15 th Street. As Ms. Kopp approached the intersection, she entered the left-turning lane and stopped. There were two vehicles ahead of her and the traffic light for her lane was red. When the light turned green, the two vehicles ahead of Ms. Kopp made left-hand turns.

However, as she entered the intersection, there was traffic approaching from the north. As a result, she was required to yield the right of way and she waited for these vehicles to clear the intersection. Ms. Kopp testified that, at this point, her entire truck had entered the intersection and was pointed in a northwest direction. However, Ms. Kopp noted that her vehicle was just into the intersection and it had not yet crossed into either of the two south- bound lanes. [ 6 ] Ms. Kopp testified that, while she was stopped and waiting for the intersection to clear, a vehicle being driven by Ms.

Zaskovets entered the intersection from the north and collided with the front bumper of her truck on the driver’s side. Ms. Kopp testified that she did not know how the Zaskovets vehicle came into collision with her truck other than it was coming from the north. Ms. Kopp speculated that the Zaskovets vehicle either spun out of control or swerved into her lane. Ms. Kopp testified that it was raining at the time of that accident and she didn’t really see what happened. The roads were icy at the time and Ms. Kopp stated her belief that Ms. Zaskovets may have lost control of her vehicle. In cross-examination, Ms.

Kopp denied that her truck moved prior to the collision or that it entered either of the two south bound lanes of 6 th Avenue. [ 7 ] Ms. Kopp called her daughter, Janine Huntley, to testify on her behalf. Ms. Huntley testified that, by coincidence, she was at the same intersection at the time of the collision. While Ms. Huntley partially observed the accident, she testified that she did not realize, at the time, that her mother was involved in the collision. [ 8 ] Ms. Huntley had just dropped her daughter off for work at Dairy Queen and she was on her way to go shopping.

To get to her destination, she approached the intersection of the accident from the north and pulled into the far left lane on 6 th Avenue – the left turning lane. When she approached the intersection, the light for the left-turning lane was red. As a result, she brought her vehicle to a stop and waited. At that point, Ms. Huntley was facing south and had not yet entered the intersection. Ms. Huntley testified that, while she was waiting, she noticed a south-bound vehicle pass her on the right after the traffic lights had turned red. She testified that she then heard the sounds of a collision.

She testified that she was not surprised that an accident occurred because she felt the vehicle coming from the north was travelling too fast for the road conditions. In her words, the vehicle “flew by”. Ms. Huntley estimated the vehicle’s speed to be between 40 and 45 kilometers per hour. [ 9 ] Ms. Huntley testified that prior to hearing the sound of the collision she was not paying attention to traffic around her. She testified that she did not see the accident until after she heard the sound of a collision. At which point, she saw two vehicles moving together in a southwest direction. While Ms.

Huntley would have had an unobstructed view of the intersection, until she heard the sound of the collision, she was not paying attention to traffic around her. Ms. Huntley testified that she did not even know that her mother had been involved in the accident until a few minutes later when she got a call from Ms. Kopp. Simply put, she didn’t recognize that it was her mother’s vehicle that was in the intersection in front of her. However, Ms. Huntley testified that she was confident that the Zaskovets vehicle was the same vehicle that passed her car just prior to the accident. [ 10 ] Ms.

Zaskovets testified that she is also familiar with the intersection having lived in the City of Prince Albert for the past eight years. On November 21, 2016, Ms. Zaskovets was returning home from bowling with her children. She approached the intersection from the north and was travelling in the 2 nd lane from the right heading south. It was her intention to go straight through the intersection and continue going south. Of the two lanes going straight through the intersection, Ms. Zaskovets was in the right lane – the farther of the two from Ms. Kopp’s truck.

She testified that the traffic light was initially green as she approached the intersection but then turned yellow as she got closer. Ms. Zaskovets did not feel it would have been possible to bring her vehicle to a stop. Therefore, she proceeded to enter the intersection. Ms. Zaskovets stated that she was travelling at approximately 30 kilometers per hour, having reduced her speed because it was raining and the roads were icy.

[ 11 ] Ms. Zaskovets testified that while her vehicle was going through the intersection Ms. Kopp’s truck began moving toward her lane and the two vehicles collided. Ms. Zaskovets denied that her vehicle was sliding through the intersection or that she lost control of her vehicle at the time of the accident. To the contrary, Ms. Zaskovets testified that she was in her lane and tried to stop but that Ms. Kopp’s truck hit her car. [ 12 ] All witnesses agreed that after the collision, the vehicles separated, pulled over to the side of the road, and stopped. Ms. Kopp and Ms.

Zaskovets moved their vehicles to an adjacent parking lot and exchanged contact information. Ms. Huntley arrived/returned approximately ten minutes later. [ 13 ] Both Ms. Kopp and the defendants tendered photographs of the damage to their respective vehicles. The damage is consistent with the point of contact being on the front bumper of Ms. Kopp’s truck on the driver’s side in front of the driver’s side front tire. There is no other apparent damage to the vehicle. Unfortunately however, the oil filter for the truck is located directly behind the point of impact on the bumper and it was damaged.

While the damage to Ms. Kopp’s truck was not significant, the vehicle was rendered inoperative because the oil filter was leaking. [ 14 ] The point of contact on Ms. Zaskovets’ car was on the front driver’s side quarter panel in front of the front wheel on the driver’s side. Simply put, the front bumper of Ms. Kopp’s truck came in contact with the front driver’s side of the Zaskovets vehicle. Damage to Ms. Zaskovets’ car was modest and her vehicle continued to be operative. [ 15 ] As is apparent from my recount of the testimony, certain factual determinations must be made before Ms. Kopp’s claim can be evaluated.

First, did the Zaskovets vehicle enter the intersection when the traffic light was yellow or red? How fast was the Zaskovets vehicle travelling prior to the accident? Did Ms. Zaskovets lose control of her vehicle? Second, did Ms. Kopp begin moving her vehicle prior to the accident? [ 16 ] Based on a reasonable

interpretation of the evidence, I am satisfied on the balance of probabilities that the traffic light had not turned red when Ms. Zaskovets entered the intersection. I base this determination on Ms. Zaskovets’ testimony which I found to be clear, fulsome and compelling. In coming to this conclusion, I discount the testimony of Ms. Huntley on the basis of reliability. While she was confident that the traffic light had turned red before the Zaskovets vehicle passed her, she candidly admitted that she was not paying attention immediately prior to the accident. It is obvious that such was the case.

She did not recognize her mother when she and her vehicle were mere metres away and directly in front of her. If she was paying so little attention that she did not recognize her mother’s vehicle in such close proximity, it is obvious she was not paying sufficient attention to traffic around her to make her evidence reliable. As a consequence, I discount her evidence as to what happened prior to the accident. [ 17 ] I am satisfied on the balance of probabilities that Ms. Zaskovets was not travelling at a high rate of speed when she entered the intersection. Ms.

Zaskovets testified that she was travelling at a reduced speed (approximately 30 kph) because of the poor road conditions. In addition to her testimony being clear, compelling and fulsome, her testimony was consistent with the limited nature of the damage to the two vehicles. Very little damage occurred to either vehicle – implying both that the Zaskovets vehicle was not travelling at a high rate of speed and that she attempted to avoid the collision. For the reasons already noted, Ms. Huntley’s evidence as to the Zaskovets vehicle travelling at a high rate of speed is not reliable.

She simply wasn’t paying close enough attention to the other vehicles around her for me to give any weight to her evidence. Ms. Kopp offered no credible evidence on the point. As a result, I accept Ms. Zaskovets’ evidence. [ 18 ] I am also satisfied that Ms. Zaskovets did not lose control of her vehicle prior to the accident. Ms. Zaskovets testified that she was travelling straight through the intersection. The damage to the two vehicles is not consistent with Ms. Kopp’s evidence that the Zaskovets vehicle spun out of control or that it swerved over two lanes and then hit a vehicle stopped where Ms.

Kopp said she was stopped. To the contrary, the location and nature of the damage on the vehicles is far more consistent with the accident as described by Ms. Zaskovets; namely that Ms. Kopp’s truck began moving and that she drove into the intersection in front of the Zaskovets vehicle. The location of the damage is consistent with Ms. Kopp’s truck striking the Zaskovets vehicle; not the other way round. Furthermore, the limited nature of the damages is consistent with both vehicles travelling at a modest rate of speed and consistent with Ms.

Zaskovets’ testimony that she tried to stop but was unable to do so prior to the collision. [ 19 ] In my opinion, Ms. Kopp’s evidence as to how the collision occurred was not credible. Immediately prior to the accident, Ms. Kopp would have been watching for a break in opposing traffic so she could complete her turn onto 15 th Street. Vehicles coming from the north would have been – ought to have been – the primary focus of her attention. Raining or not, Ms. Kopp’s assertion that she does not know how the Zaskovets vehicle ended up in front of her truck is simply not credible. Nor is her speculation that Ms.

Zaskovets may have lost control of her vehicle. These events unfolded directly in front of her – in the very direction her attention was supposed to be

focused. Raining or not, the lack of direct evidence from Ms. Kopp as to the mechanics of the collision undermine both her credibilityand her claim. [20] Simply put, I am satisfied on the balance of probabilities that Ms. Zaskovets did not lose control of her vehicle, that she wastravelling at a reduced rate of speed when her vehicle entered the intersection, that the accident occurred in Ms. Zaskovets’ lane, that Ms.Kopp put her truck in motion prior to the accident, and that Ms. Kopp’s truck struck the Zaskovets vehicle; not the other way round.

Iam also satisfied that the traffic light had turned yellow (amber) prior to Ms. Zaskovets’ vehicle entering the intersection but that it hadnot yet turned red. THE LAW [21] Driving is a regulated activity. In Saskatchewan, The Traffic Safety Act, SS 2004, c. T-18.1, defines “rules of the road”.

Inaddition, this statute creates a number of driving offenses all ostensibly for the purpose of discouraging unsafe driving practices andreducing the severity of collisions. [22] In addition to the restrictions and regulations imposed by statute, drivers are also bound by a common law standard of care.Every operator of a motor vehicle in Saskatchewan owes a duty to operate his/her vehicle in a manner which does not pose anunreasonable risk of danger to others. Simply put, the standard of care expected of anyone operating a motor vehicle in Saskatchewan isthat of a reasonably prudent, careful, and skilled driver.

If drivers fail to meet this standard and injury or loss results, then they are inbreach of their common law duty of care. In such circumstances, a Court is entitled to conclude that their actions were negligent andassess damages in favour of the aggrieved party. [23] This Court can, and often does, look to The Traffic Safety Act to identify the appropriate standard of care expected of driverson streets and roads in Saskatchewan.

While a breach of these rules of the road does not always determine whether a driver has fallenbelow the standard of care expected of them (there may be exceptional circumstances in any given situation), it is clear that a breach of astatutory condition is relevant in establishing a standard of care. See generally the decision of Barclay J. in Szekely v Chandler; Szekely vBauer et al., (SK QB) at para 11. [24] In these proceedings, the following provisions of The Traffic Safety Act are relevant: Driving with due care required 213(1) No Person shall drive a vehicle on a highway without due care and attention.

(2) No person shall drive a vehicle on a highway without reasonable consideration for other persons using the highway. … Rules re yielding right of way 219(3) If the driver of a vehicle intends to turn left across the path of any vehicle approaching from the opposite direction, the drivershall: (

a) yield the right of way; and (

b) not make the turn until the driver has afforded a reasonable opportunity to the driver of the approaching vehicle to avoid acollision. . . . Rules re traffic lights 235(1) Whenever traffic is controlled by traffic lights, the lights indicate and apply to drivers of vehicles … in accordance with theother provisions of this section. …

(3) If a traffic light at an intersection displays only an amber light; (

a) the driver of a vehicle facing the light shall stop at the crosswalk, but, if the vehicle cannot be brought to a stop with safety, thedriver may drive cautiously through the intersection, and …

(5) Subject to subsection (6), if a traffic light at an intersection displays only a red light: (

a) The driver of a vehicle facing the light shall stop at the intersection; … CONCLUSIONS AND ORDERS [ 25 ] In these proceedings, Ms. Kopp argues that Ms. Zaskovets breached

section 235 of The Traffic Safety Act , that she did not exercise reasonable prudence and care, and that her negligence caused the accident. Having considered and weighed the evidence, I dismiss Ms. Kopp’s claim against the defendants. [ 26 ] Based on my

interpretation of the evidence, the traffic light had turned yellow as Ms. Zaskovets approached the intersection where the accident occurred but it had not yet turned red. I am satisfied based on the evidence that Ms. Zaskovets used reasonable caution in entering the intersection. First, she was travelling at a reduced rate of speed. Second, she considered the option of stopping her vehicle prior to entering the intersection. Contrary to Ms. Kopp’s assertion, I find that Ms. Zaskovets did not lose control of her vehicle and she was not travelling too fast for road conditions.

Simply put, it is not apparent that Ms. Zaskovets breached any rule prescribed in The Traffic Safety Act . Nor am I satisfied that the accident that occurred on November 21, 2016 was the result of negligence on the part of Ms. Zaskovets. [ 27 ] On the other hand, I find that Ms. Kopp breached subsection 319(3) of The Traffic Safety Act when she put her truck in motion and tried to execute a left-hand turn when unsafe to do so. In my opinion, Ms. Kopp was negligent in the operation of her vehicle when she failed to observe the approaching Zaskovets vehicle.

She compounded that error by failing to stop her vehicle so as to avoid a collision with the oncoming vehicle. Some drivers are inclined to the view that they have the right to proceed through an intersection to complete a left-hand turn when the traffic light facing opposing traffic turns amber or red. Such is not the case in Saskatchewan. Numerous decisions of our courts have clearly established that a driver making a left-hand turn across the path of oncoming traffic is in the servient position and must yield the right of way even if the traffic lights are changing.

Simply put, a driver may not initiate a left- hand turn unless it is safe to do so. As noted in Clark v. Bowman , 2012 SKQB 423 , 407 Sask. R. 81, a driver making a left-hand turn across the path of oncoming traffic bears a heavy onus of disproving negligence when a collision occurs. [ 28 ] The standard of care expected of a reasonably prudent and skilled driver required Ms. Kopp to keep a proper lookout for approaching vehicles and to not proceed through the intersection until it was safe to do so regardless of whether or not the traffic light was changing from green to amber or red. Although Ms.

Zaskovets entered the intersection after the traffic light had changed to amber, she did so at a reduced speed and tried to avoid the collision but was unable to do so. In my opinion, responsibility for the collision that occurred on November 21, 2016 rests entirely with Ms. Kopp. She put her truck in motion and tried to execute a left-hand turn when it was unsafe to do so. Although she tried, it is not apparent from the evidence that Ms. Zaskovets had a sufficient opportunity to avoid colliding with Ms. Kopp’s truck. As a result, I am not satisfied that any fault can be attributed to Ms.

Zaskovets in these circumstances. Dated at the City of Prince Albert, in the Province of Saskatchewan, this 13 th day of December, 2017. ______________________________ S.D. Schiefner, J