Failure to afford reasonable opportunity to avoid collision

burgersgirl
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Failure to afford reasonable opportunity to avoid collision

Unread post by burgersgirl on

Hi folks, hoping you can help me determine if it is correct that Driver 1 (D1) is 100% at fault, or if Driver 2 (D2) is at fault too:

D1 traveling westbound enters intersection to cross two lanes to make left into a single lane southbound (both eastbound and westbound have left turn lanes in addition to two lanes of flowthrough traffic). Coming the opposite way is D2 in the outside lane.

D1's vehicle gets hit on passenger side by D2's vehicle.

D1 gave following evidence to police officer at the scene:
"I was westbound in left turn lane, signal on, light was green, I wasn't going fast. Thought it was clear, I went, [D2] was too fast." Police had notes at end of D1 statement: No injuries, P/S airbag deployed. No witnesses. Sunny, dry. (seems like it is written as part of D1's statement, but D1 didn't say "Sunny, dry" and we're not sure D1 would have said 'no witnesses' - D1 can't remember this.

D2 gave following evidence to police officer at the scene:
"I was eastbound in outer lane, 55 km/hr, saw car turning, I slowed down, [D1] still didn't turn, blocking my way, slammed on my brakes before intersection, I hit [D2]. Green light all the way."

Witness (in nearby store on south side) gave following evidence at the scene:
"A vehicle was travelling west turned south into store's parking lot right into the path of a vehicle travelling east. The eastbound vehicle impacted the passenger side of the left-turn car and air bags were deployed. The two cars ended up almost side by side. Both vehicles moved their cars into the store's parking lot and waited for police."

Police log is hard to read but there a note that may say 'slid from A01 to V1 revting 26.3 m' where "revting" appears to be a shortform or I'm an incompetent decipherer... The accident report says (I think) "D1 turned in front of D2 + they collided. No injuries. A01 unknown as vehicles were moved before police arrival."

D1 was charged with 'Left turn failure to afford reasonable opportunity to avoid collision' and 100% at fault. I believe this is 2 demerit points.

D1 insists D2 was going too fast, and D2 admits to seeing D1 and slowing down but then hitting D1 anyway (and admits to going 55 in a 50 zone, D1 thinks it was more), means D2 is also at fault. Could this be argued in court?

Thank you so much for any help!


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Squishy
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Unread post by Squishy on

For insurance: D1 100% at fault, even if D1 is cleared of charges.

Or are you saying that D2 should be given a ticket for speeding? Would probably have to be a very squeaky wheel to someone (prosecutor's office?), and 99% chance you will get brushed off as the notes say only 5 km/h over. Even then, it would only marginally help D1's court case. D1 would have to show that, in the time that D2 was visible, the turn was already in progress and there was no way to avoid a collision. Just the assumption that oncoming vehicles should be travelling within the limit is not good enough.
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Unread post by hwybear on

burgersgirl wrote:Hi folks, hoping you can help me determine if it is correct that Driver 1 (D1) is 100% at fault, or if Driver 2 (D2) is at fault too:
Vehicle going straight has the right of way.
Police log is hard to read but there a note that may say 'slid from A01 to V1 revting 26.3 m' where "revting" appears to be a shortform or I'm an incompetent decipherer... The accident report says (I think) "D1 turned in front of D2 + they collided. No injuries. A01 unknown as vehicles were moved before police arrival."
I do not know what you are calling a police log? Is this the Traffic Collision Report (which has both drivers, vehicles info, little diagram)

What you are reading of A01......could it be POI = Point of Impact
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


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Unread post by Radar Identified on

burgersgirl wrote:D1 insists D2 was going too fast, and D2 admits to seeing D1 and slowing down but then hitting D1 anyway
Exceeding the speed limit does not place D2 at fault. To be charged in this collision, basically his speed would have had to have been too fast for D1 to detect and react to him in a reasonable and proper manner, which would depend on the road and traffic conditions. 5 km/h over the limit is nowhere near enough to be able to make that claim.

For insurance purposes, D2's speed would have to be at least 16 km/h over the posted speed limit (Ontario Fault Determination Rules). Even then, for HTA charges, that still is often not enough to get D2 charged or exonerate D1.


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Unread post by OTTLegal on

Was it a signalized intersection or one with a stop sign. it makes a difference, what was the section number under the HTA that they were charged with?
Chris Conway
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Unread post by burgersgirl on

It was a signalized intersection and both parties stated light was green.

Charge is under 141(5).

Thanks everyone...


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Unread post by OTTLegal on

Driver #1 is 100% fault in the accident, they were making the turn.

The ticket, sounds like it the wrong charge. The charge says;

"No Driver of a vehicle in an intersection shall turn left across the path of a vehicle approaching from the opposite direction unless he or she has afforded a reasonable opportunity to the driver of the approaching vehicle to avoid a collision"

Turning into a driveway is not turning at an intersection....

Its the wrong charge, should have been, Highway Traffic Act section 142,1;

" the driver of a vehicle upon a highway/roadway before turning to the left or right at any intersection or into a private road or driveway or from one lane of traffic to another shall first see that the movement can be made in safety".

If you get someone who understands the law you should be able to win this case at court. If you pay the ticket your admitting that your at fault in the accident and you will have an accident and a traffic ticket against you on your insurance rates.

If you win the case you will just have an at fault accident, but no traffic ticket keeping your insurance as low as possible. The ticket the officer gave you has 2 demerit points.
Chris Conway
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Breathalyzer Tech, Radar/Highway Patrol
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Squishy
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Unread post by Squishy on

If the traffic control signal is just for the store's driveway, you might have an argument, but most signalised driveways are at a T-intersection where the driveway just happens to be on the other side. As long as two highways meet at the traffic control signal, it is an intersection, and turning left at an intersection is turning at an intersection - does not matter where you are travelling to, and the section does not say "turning to an intersection."
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Unread post by OTTLegal on

Witness (in nearby store on south side) gave following evidence at the scene:

"A vehicle was traveling west turned south into store's "parking lot" right into the path of a vehicle traveling east.

Read the statement from the witness,

Then read the Highway Traffic Act...

Left turn, across path of approaching vehicle

(5) No driver or operator of a vehicle in an intersection shall turn left across the path of a vehicle approaching from the opposite direction unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision. R.S.O. 1990, c. H.8, s. 141 (5).

A driveway to a store is not an intersection... its a driveway, like pulling into your driveway to your house, its a driveway not an intersection.
Chris Conway
Retired Toronto Traffic Officer, Hit & Run Squad Detective,
Breathalyzer Tech, Radar/Highway Patrol
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Unread post by burgersgirl on

D2 wouldn't have admitted to greater speed - will insurance companies only consider police report at time of incident? Or will anything in court affect finding, e.g. if we successfully argue that D2 was speeding much more than 5 km/h over limit? (many travel b/n 60 - 70 on this very busy 4 lane road with two lanes each way with separate turn lane)

At this signalized intersection there is a street opposite to the parking lot, and the parking lot driveway is more like an access road to various parking areas for a restaurant (where witness was), a liquor store, a book store, etc. No road per se (no name), but not just a driveway. Does this change anything or is it still wrong charge?

Thank you again, really. This is very helpful.


burgersgirl
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Unread post by burgersgirl on

yes witness statement definitely says "parking lot"


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Unread post by Radar Identified on

burgersgirl wrote:D2 wouldn't have admitted to greater speed - will insurance companies only consider police report at time of incident?
Unless D1 has someone with experience in collision investigation successfully prove that the speed was markedly higher, then in this case, they'll pretty much look at the initial report. Even if the argument is presented in court that "I think the other driver was going too fast," the insurance company still won't buy it. The reason is that no one at the scene of the collision was trained to estimate vehicle speeds, no one used a speed-measuring device (radar, laser) on D2, and the opinion of the general public about what they deem to be "too fast" is highly subjective.

If the charge gets wiped out in court, the insurance company is still going to fall back on the Fault Determination Rules, which place D1 100% at fault. Link to Fault Determination Rules Maybe dig through there and see if that's any help.


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Squishy
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Unread post by Squishy on

burgersgirl wrote:At this signalized intersection there is a street opposite to the parking lot, and the parking lot driveway is more like an access road to various parking areas for a restaurant (where witness was), a liquor store, a book store, etc. No road per se (no name), but not just a driveway. Does this change anything or is it still wrong charge?
The street opposite the driveway makes it an intersection. It doesn't matter that you were turning into a driveway, it was still a turn at an intersection.
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Unread post by OPS Copper on

How do you know the other vehicle was speeding? Did you have a radar...Are you trained. If not then whether you think the other vehicle was speeding is just an uninformed opinion and is not relevant. If you want to claim the other vehicle was speeding you need to prove it some how and not just speculate.

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Unread post by burgersgirl on

I just came across something on Ticket Combat that lists 141 (5) as a 3 demerit point infraction, not 2. Well, thanks for any help.






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