Saumur v. Antoniak, 2015 ONSC 2380
COURT FILE NO.: 02/7354
DATE: 2015-04-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dean Saumur by his litigation guardian Janet Saumur and the said Janet Saumur
Plaintiffs
– and –
Luba Antoniak, Lester Antoniak and the City of Hamilton
Defendants
COUNSEL:
Mr Robert Hooper for the plaintiffs
Mr C. Kirk Boggs and Ms J. Hunter for the City of Hamilton
HEARD: March 26 – April 10, 2015
BEFORE: Mr Justice Ramsay
REASONS FOR JUDGMENT
[1] On May 14, 2002 the plaintiff Dean Saumur, then a fortnight shy of his 10th birthday, was knocked down by a car driven by Luba Antoniak and owned by Lester Antoniak. The Antoniak defendants have settled with the plaintiff and the City of Hamilton without admitting liability. The plaintiff claims from the City for negligence. Quantum of damages is agreed. The issues for me on this trial are
a. the liability of the Antoniaks and the City,
b. how the liability, if any, should be apportioned between them and
c. whether the plaintiff contributed to his loss through his own negligence.
[2] The accident took place on Gray Road in Stoney Creek. This is the Grays Road that crosses the Queen Elizabeth Way. On its way south to the escarpment, just before the accident site it changes its name to Gray Road.
[3] Near Collegiate Avenue, Gray Road is a busy four-lane thoroughfare. There is no boulevard between the sidewalk and the road. The sidewalk abuts the roadway directly.
[4] While on his way to school at Collegiate Avenue Public School Dean Saumur stepped off the curb of Gray Road onto the roadway near or in the crosswalk at Collegiate Avenue in order to cross from the west side of the road to the east side where his school is located. He was struck by the Antoniak vehicle and thrown up and to the right. He landed on the curb on his head. Mrs Antoniak stopped her car a short distance down the road.
[5] The crosswalk in question is located in front of the single family residence at 104 Gray Road. The crosswalk was scheduled to be manned by a crossing guard from 8:20 to 8:40 am. The crossing guard was not present when Dean attempted to cross the street. The claim against the City is threefold: first, the crossing guard left before her assigned time; second, in the alternative, the City was negligent for operating a crossing guard program that provided for the guard to leave at the first school bell which rings ten minutes before classes start; and third, the City failed to fulfil its statutory duty to keep the intersection in good repair.
[6] The basis of the third head of the claim is that the City knew that this was a dangerous intersection and it should have reduced the speed limit before the accident. I think that the City’s decision about the speed limit is a policy decision and that its decision to put a crossing guard in place was a reasonable step to prevent loss. For both reasons I reject the third head of claim at the outset. I distinguish Repic v. Hamilton (City), 2010 ONSC 363 (affirmed on other grounds 2011 ONCA 443), in which liability was imposed not for design of the interchange in question, but for negligent implementation of the design by providing inadequate signage.
[7] Dean lived at 150 Gateshead Crescent, a survey with townhouses and single family dwellings somewhat to the north and east of Collegiate Avenue Public School, where he attended grade 4. He had been walking to school without parental supervision since October of grade 4. His mother trained him during the first two months of the year. He knew to use the crosswalk and follow the crossing guard’s instructions and to look both ways before crossing the street. Sometimes he walked to school by himself. Sometimes he walked with other children, who attended either his school or St Martin of Tours Catholic School, which is located south of Collegiate Avenue a block or so. Collegiate Avenue P.S. started the day at 8:40 am at which point the first bell rang and the students could enter the building. They were expected to be in the school yard at 8:40. They then had 10 minutes to hang up their coats, unpack and go to their seats. At 8:50 the second bell rang and the instruction began. According to Susan Banks, the principal, the students were not considered late if they were in their seats by 8:50 am.
[8] Dean was an average student and a very pleasant boy. The principal never had to discipline him. Susan Banks testified that sometimes he was late for school because he did not really want to come. Janet Saumur testified that Dean did not like to go to school with unfinished homework. On May 14, 2002 she let him do his homework for a few minutes, so he left around 8:30 instead of his usual 8:20. I take it that his homework was finished.
[9] Dean does not remember the accident or anything else that happened when he was in grade 4. His memories after the accident date to September 2002, when he was in the rehabilitation hospital. Before the accident, he remembers up to grade 3.
[10] Dean used to walk to school by taking a path through the survey to Gateshead Crescent, then crossing Gateshead and travelling southwest on Stoneybrook Drive, which curves at that point to Westbury Avenue. He would then turn right onto Westbury and walk along the sidewalk of Westbury to Gray Avenue, where Westbury ends at a T intersection. Once on Gray he would be visible to the crossing guard. He would then turn left onto Gray and proceed south on Gray to the crosswalk at Collegiate Avenue. If he was walking at a low average rate, 1.3 m/sec, it would take him a little less than seven minutes to get from his door to the corner of Westbury Avenue and Gray Road, at which point he would be visible to the crossing guard.
[11] Two witnesses testified that on occasion they had driven by the crosswalk and noticed that the crossing guard was not present at 8:40. These witnesses were Janet Saumur (Dean’s mother) and Lorraine Currie (the mother of Dean’s childhood friend Darryl). Gertjan de Groot, father of pupils at Collegiate, testified that he was not pleased with the crossing guard. She was always looking at her watch and seemed to be in a hurry to leave. Checking her watch is also consistent, however, with her wanting to be sure that she stayed until the correct time. Susan Round, another witness, testified that she saw the crossing guard leave her post before the bell on May 14, 2002. (If Mrs Round is believed on all her evidence, however, the plaintiff would not have met the “but for” test of causation that applies in this case, because Mrs Round says that a short time after the bell rang, she drove past Gray and Westbury and saw Dean on Westbury, so he had not yet appeared on Gray Road by 8:40. The crossing guard’s early departure would have made no difference. See Resurfice Corp. v. Hanke, 2007 SCC 7.)
[12] It is common ground that on the day of the accident the guard was not present when Dean attempted to cross the street. The parties do not agree what time it was at that point. Police records show that a 911 call came from 104 Gray Road at 08:42:58. The plaintiffs argue that the accident happened shortly before 8:40. The defendant argues that it happened shortly after 8:40.
[13] Four witnesses saw the accident – Darryl Currie, Marc Schulze, Daniel Perron and Luba Antoniak.
Eyewitnesses - Darryl Currie
[14] Darryl Currie is 23 years old, about Dean’s age. He was Dean’s childhood friend. He went to school at St Martin of Tours. Sometimes he and Dean walked to school together, starting in the Gateshead survey and parting ways at the crosswalk. Darryl had to be at school by 9:00 am for a 9:15 start.
[15] On May 14, 2002 it was rainy out – a light rain. Darryl walked to school by himself. Darryl usually left the house at 8:30. When Darryl turned left onto Gray Road he saw Dean, walking at a normal pace, about 30 metres ahead of him. About a foot ahead of the crosswalk, he saw Dean take a glance right and the next thing he was in the middle of the street and he got hit by a car. Dean got maybe three steps into the road. He was “airlifted” about 20 feet. He crashed down onto his head. He did not move. Darryl ran up to see him. There were adults around so Darryl ran to his school and told the principal. The principal called his mother and she came and took him home.
[16] The car seemed to Darryl to be going faster than it should have been.
[17] In cross-examination, Darryl was referred to an interview he gave on August 5, 2008 to the defendant’s investigator. When asked whether Dean stopped and looked before crossing the road, he answered no, and I don’t think so. He does not now remember that statement and he did not adopt it as correct. It is admitted that he gave the statement.
[18] He was also cross-examined about what he said about going to class before going home, as opposed to waiting in the nurses’s station. I do not think that this is a serious inconsistency. It seems to me to be the product of a misunderstanding in the interview anyway.
Marc Schulze
[19] Marc Schulze is the unsung hero of the piece. He is a patient transfer medic. He used to take his son Dustin to Collegiate Avenue School. He lived on Mountain Street at the time, southwest of the school. On May 14, 2002 it was raining. He dropped his son off at school. He did not hear the bell. He then drove east on Collegiate Avenue, intending to turn left to go north on Gray Road. He got to Gray Road and stopped at the stop line. Before turning he scanned right, left and right again. On his first scan right he noticed a green car that he thought was travelling at a high rate of speed northbound. As he scanned left he saw straight ahead of him a child “standing there in the crosswalk.” (I take it he meant on the sidewalk at the crosswalk.) Schulze wondered where the crossing guard was. Schulze scanned back right to see where the green car was. It had approached surprisingly close. It was too close for him to make his turn. The child took two quick steps into the intersection. The car was approaching. “I could see it coming but there was nothing I could do.” The car struck the child. The child went 15 to 18 feet into the air. He landed on the curb and rolled past the end of the driveway at 104 Gray Road.
[20] Schulze pulled his car across Gray Road and slightly to the right, blocking the northbound lane. He looked at his car stereo. The time was 8:38. He got out and approached the child. Fearing a spinal injury, he put his coat under the child to immobilize him. He checked the child for vital signs and found none. Given the trauma, he performed only a brief chest massage, 10 compressions. The boy’s pulse returned. Schulze told the crowd to call 911 and ask for advanced life support. He tended to the boy until the fire department relieved him. Ambulance and police arrived as well.
[21] He gave a statement to the police in the back of the police car. In the statement he said that the child stepped into the intersection at a quick walk or jog. Asked whether the child looked left or right he answered in the negative. He also said that the rain hood might have obstructed the boy’s vision. He accepted these parts of his statement as correct.
[22] It was put to him in cross-examination that he told someone from the lawyer’s office that he would do everything he could to help the plaintiff. Schulze denied having said that. The defendant would have been entitled to call evidence to prove this utterance. It went to the witness’s bias, and therefore his competence, so it was material, not collateral. But no such evidence was called. I conclude that Schulze never said any such thing.
Daniel Perron
[23] Daniel Perron is now 38. On May 14, 2002 he was walking south on Gray Road when he saw Dean coming out of Westbury Avenue. Dean turned left onto Gray and walked at a normal pace down toward the crosswalk. He would not have been able to see properly from left to right because his hood was pulled tight to his face. Dean was about 50 feet ahead of him. He had a feeling the boy might cross the street, so he tried to catch up to him. The boy was walking at a normal speed. By the time Mr Perron was within 30 feet, the boy turned right all of a sudden and walked or ran into the road without looking. He made it one step out when he was struck. Dean did two or three flips in the air and landed half on the sidewalk and half on the road. Mr Perron ran over to him. He said that this all could have taken place just before or after 8:40 am. Mr Perron did not think that Dean had got to the crosswalk before he stepped out, but “I am not 100% sure.” He did not think that the Antoniak vehicle had been speeding. Her speed looked to be normal. (He did not mention the Antoniak vehicle’s apparent speed in his statement to the police, so this was from memory.) After the accident, the lady jumped out of the car. She was frantic. She said, “He jumped out. I had no time to stop.”
Luba Antoniak
[24] Luba Antoniak testified that on May 14, 2002 she was driving to work at 400 Grays Road. She was driving in the curb lane at 42 or 43 km/h. She had looked at her speedometer. She told the police that she had been going 50, because she knew the limit was 50 and the police usually had speed traps set up. She attributed the inconsistency to shock.
[25] Mrs Antoniak saw six or seven children waiting for a school bus on the right hand side of the road. It was raining very hard. She had her wipers set on fast speed. Visibility was acceptable. She first saw Dean running from the street on the right (Westbury) and down Gray Road with his head down. At a guess, about six feet after he came around the corner she heard a thud and saw a flash of green and stopped. The thud and her application of the brakes were essentially simultaneous. She did not know that she had hit Dean. She had been looking straight ahead. She got out of the car, screaming “like a lunatic” for someone to call 911. She saw Dean lying in the roadway. She had heard the time announced on the radio as 8:42 am. A minute later the accident happened.
Witnesses who did not see the accident occur – Ian Perry
[26] Ian Perry lived in the Gateshead survey at the time. His son Brandon was friends with Dean. Dean was a typical young boy.
[27] On May 14, 2002 the weather was wet and inclement. Perry was driving his son to school at St Martin. As he drove, he and his son saw Dean walking on Stoneybrook Drive just before Westbury. “Between 8:30 and 9 is all I can say.” Dean was wearing a jacket with a hood. The hood was up. Brandon recognized Dean. Dean was walking at standard walking speed. They did not see him again before they got to St Martin.
[28] They got to St Martin five to ten minutes later. Brandon was dropped off. Perry took a different route home, north on Gray Road. He came upon Dean on the side of the road. He got out of the car to help. Dean was curled up on the road. Blood was in his nose and ear.
Gertjan de Groot
[29] Gertjan de Groot lived in the neighbourhood, south of King Street. He and his wife and four children knew the Saumurs. Dean had visited de Groots the night before the accident.
[30] The de Groot children went to Collegiate. Gray Road was always busy and people did not always follow the speed limit.
[31] On May 14, 2002 it was drizzling. Mr de Groot drove from Jasper to Gray then turned left onto Collegiate. As he turned onto Collegiate the crossing guard was present. He arrived just before the bell. (He said he thought it was the second bell, but he must be mistaken. By the time he got back to the crosswalk the accident had happened and we know from the 911 call that it was no later than 8:42:58, about seven minutes before the second bell.) After dropping his children, and after the bell, de Groot went west on Collegiate Avenue to Gray Road.
[32] When he got to Gray Road a couple of cars were ahead of him. He saw the child in the street. He did not recognize him, although he knew Dean. He thought it might have been a girl. He just noticed the hair coming out from under the rain hood. No crossing guard was present. No one had phoned 911 so he ran to 104 Gray Rd and asked the people to call. The little girl had trouble making herself understood so he took the phone.
Tory Pomerleau
[33] Tory Pomerleau, now age 26, was the little girl. She was 13 at the time of the accident. She lived at 104 Gray Road, right in front of the crosswalk. Her parents went to work early. She got herself and her younger brothers ready for school at St Martin. Her brother Tanner was recovering from an injury and using a walker, so he was picked up by a special bus. Tory and her other brother, Alex, would then walk to school.
[34] Their routine was to leave the house at 8:35 am to wait for Tanner’s bus. On May 14, 2002 they went outside around 8:30 or 8:40. The crossing guard was not there when they went out. She and her brothers stood on the driveway. The boys were twirling their umbrellas, making the colour green. (I take it that the umbrellas are yellow and blue, and when you spin them you see green.) So it was not pitch dark. Tory was facing the road. She saw Dean, whom she did not know, from the point when he passed the pink tree in the neighbour’s yard. He was scurrying – not running – but it looked as if he was in a hurry. He was wearing a dark green coat with the hood up. His vision could have been impacted by the hood, but not completely. Dean scurried past and she turned to her brothers. She heard a noise and when she turned around Dean was flying in the air. His shoes were knocked off. He hit the side of the road and rolled. When she saw him, he was about two feet in the air. She went up to him and saw blood on his nose.
[35] The lady who was driving the car screamed at her to call 911. She ran to the house, fumbled with her keys, unlocked the door and went to the kitchen. She called 911. The operator wanted to speak to an adult. An adult came to the door and she gave the phone to him. Between seeing Dean on the ground and calling 911 took her 2 or 3 minutes.
Alex Pomerleau
[36] Alex Pomerleau testified as to the same routine as his sister. He was standing on the driveway twirling an umbrella. He saw Dean running toward the crosswalk. He looked away. He only recalls hearing screeching of tires and then he looked to the end of the driveway and saw Dean tumbling across the ground.
[37] The driver screamed “Oh, my God, oh my God, I thought it was a piece of garbage.”
Susan Round
[38] Susan Round testified that on May 14, 2002 she lived at 150 Gateshead Crescent unit 43. She left home around 8:40 or before 8:40 or 8:40-ish to drive her daughter to Collegiate Avenue school. She saw Dean on Stoneybrook in front of 151 Gateshead Avenue, walking very slow with his head down. She said to herself, “He is going to be late.” She thought about giving him a ride, but wisely she did not because she did not know his parents or have their permission. She drove her daughter to school to drop her off, noticing on the way that the crossing guard was leaving. As Mrs Round dropped her daughter off, she heard the bell ring. She did not know which bell, but again, this must have been the first bell. Mrs Round testified that she then drove back down Collegiate and turned left onto Gray Road. As she passed Westbury Avenue, she saw Dean, still on Westbury, approaching Gray, still plodding along. She learned of the accident later that day and jotted down her recollections.
The crossing guard
[39] Helen Kaumeyer was the crossing guard. She testified that she had nothing to do with setting duty hours. She was trained that it was very important always to be present during duty times, and not to arrive late or leave early. She was also trained not to stay after quitting times because if she crossed a child outside the set times and there was an accident, she and the City could be held responsible. The City’s written procedures bear her out on these points. Ms Kaumeyer received a copy of the policies and procedures every August at the yearly meeting when the policies were reviewed.
[40] As required, Helen Kaumeyer told the school secretary about the duty times at the beginning of the school year. When she noticed children crossing at lunch who were outside the duty times, she notified her supervisor. The lunch time duty was changed to accommodate these children and Ms Kaumeyer told the principal about the change.
[41] As to the day of the accident, she testified partly from memory and largely from her invariable routine. She set her watch against the Weather Channel every morning, but it was not synchronized with the school time in any way. She could not see the school or hear the bell from the crosswalk. Ms Kaumeyer was in the habit of pulling the pin on her watch every night to save the battery. It follows that she had to set her watch every morning.
[42] The usual pattern obtained that day, which was that a group of children crossed at about 8:20, one or more about 8:30 and a few at 8:35 or so. She would see six to ten children in the morning, two at lunch time and 30 or 40 at the end of the day. She knew Dean, although not by name. Dean usually walked to school, but Ms Kaumeyer does not know at what time he usually crossed in the morning. She said that he must have been in one of the groups.
[43] At 8:40 she looked at her watch, checked to see if there were children approaching, crossed the street, checked for children again, and then got in her car and drove home. She was parked at the Church on the corner of Collegiate and Gray. She turned left onto Collegiate from the parking lot and then left onto Gray and home. She saw the Pomerleau boys in their driveway, but did not see any other children approaching. She heard about the accident when she returned to school after lunch.
Experts
[44] The plaintiffs called a surveyor who mapped the route from Dean’s house to the school and provided precise measurements which are not controversial.
[45] The defendant called two accident reconstructionists. The first, Det. Anthony Furness, was the detective who investigated the accident for the police. He estimated that at the time of the accident the Antoniak vehicle was travelling between 34 and 47 km/h.
[46] The second, Craig Wilkinson, is a traffic engineer. He put the vehicle’s speed between 28 and 55 km/h at the point of impact. Mr Wilkinson also testified that it would have taken Helen Kaumeyer 1 minute and 42 seconds to leave her post, get into her car and drive past the intersection of Gray and Westbury, not counting any time spent waiting for traffic either as a pedestrian or a driver. Assuming that the accident happened 30 seconds before the 911 call, and that Helen Kaumeyer left her post at 8:40, the time would have been 8:42 when Ms Kaumeyer passed Westbury and was on her way. Finally, Mr Wilkinson testified that in his opinion, Mrs Antoniak did not have time to stop before she hit Dean.
Luba Antoniak’s liability
[47] At this point I need to deal with the evidence about speed. I do not accept the estimates of the accident reconstructionists. Neither expert knew the point of impact. Both experts assumed for the purposes of their calculations that the point of impact was about 4 metres north of the crosswalk. There was no evidence of such a thing. I find that that the point of impact was much closer to the crosswalk.
[48] Apart from Mrs Antoniak, who said that she could only guess, the eyewitness evidence about point of impact is as follows:
Darryl Currie
About a foot before (north) of the crosswalk.
Marc Schulze
In the crosswalk.
Tory Pomerleau
I was standing in my driveway. He scurried past me.
Daniel Perron
I don’t believe he got to the crosswalk but I am not 100% sure.
[49] Det. Furness testified that Marc Schulze pointed out an area four metres from the crosswalk as the approximate area of impact. Marc Schulze did not adopt this in his testimony. The utterance is not evidence. To me, it has limited use even as a previous inconsistent statement. There was no formality to this utterance. It was not taken down and shown to the witness to confirm. And it was taken by a witness with whose investigation I am not overly impressed. The officer marked the wrong locations for the point of rest of the Antoniak vehicle, which underestimated its travel by over 4 metres. He had to be corrected by Mr Wilkinson. I do not attribute any precision to the officer’s account of the area that Mr Schulze pointed out. Marc Schulze’s testimony has the boy in the crosswalk. Darryl Currie has him a foot away. Tory Pomerleau was standing near the pillar in her driveway. If Dean scurried past her, that puts him pretty close to the crosswalk. And Daniel Perron cannot say that the boy did not reach the crosswalk. On all the evidence I am satisfied that Dean attempted to cross the street within the crosswalk or perhaps a foot or so north of it.
[50] Mr Wilkinson calculated a range of speeds based on the distance Dean flew through the air. This calculation also suffers from his not knowing the point of impact. In any event, Mr Wilkinson concedes that Mrs Antoniak could have been going 55 km/h, which in my opinion was too fast.
[51] Mr Wilkinson was of the opinion that Mrs Antoniak had no time to react to Dean’s decision to cross the street. His opinion is weakened by Mrs Antoniak herself, who testified that she saw Dean run all the way from Westbury. This is important enough that Mr Boggs, who was supportive of Mrs Antoniak’s credibility in general, urged me to disregard her testimony on this point.
[52] I also find that Mrs Antoniak was driving at the extreme left edge of her lane. No one, including Mrs Antoniak, says that she swerved or turned, and her car came to rest with its left wheels all but touching the white line, or rather where the white line would have been if it was not broken at that point. So there is no certainty as to how far into the lane Dean got before being hit.
[53] My most important problem with Mr Wilkinson’s opinion is that it is beside the point. The point is, “Why could Mrs Antoniak not stop in time?”
[54] I reject Mrs Antoniak’s evidence about her speed. She says she was going 42 or 43 km/h because she looked at the speedometer. But she told the police that she was going 50 km/h and she tied that knowledge to her habit of following the speed limit to avoid a ticket. I do not believe her on her speed nor do I believe that she looked at her speedometer.
[55] I found Mrs Antoniak an unsatisfactory witness generally. She was extremely upset after the accident, to a sufficient extent to affect her perception of the events. She was also defensive from the first moment. I accept Darryl Currie’s evidence that she uttered, “I thought it was a piece of garbage.” I do not believe that she thought any such thing. I think she conjured up an excuse to allay her feelings of guilt. To this day, on two occasions when cross-examination got to sensitive issues she raised her voice markedly in a tone of anger that to my mind suggested defensiveness. I do not rely on her evidence except where she makes an admission against interest, the main one being that she saw the children waiting for the bus and she saw Dean run around the corner onto Gray and down toward the crosswalk.
[56] Mr Perron did not think that Mrs Antoniak was speeding, but Darryl Currie and Marc Schulze both did. I do not think that Mr Perron was in as good a position to see as Marc Schulze. Based on his cross-examination I think he may have been farther from Dean than he thought. And he did not mention the apparent speed of the Antoniak vehicle in his contemporaneous statement. In any event Marc Schulze had the ring side seat at the crucial time and he was not a pedestrian. He was a motorist trying to make a left turn, so it rings true that he was paying attention to the speed of northbound cars as he said he was. I do not think that Mrs Antoniak would have appeared to Marc Schulze to be speeding if she had been going 43 km/h. I find that she was going more than 55 km/h.
[57] That was too fast for the conditions. It was pouring rain, she was driving through a clearly marked school crossing between 8:30 and 9:00 am, there were children standing on the side of the road and Dean Saumur was walking quickly down the sidewalk right on the edge of the curb. Mrs Antoniak was going too fast in the first place, and seeing the crosswalk and the children she should have slowed down further and watched out for the children. She did none of these things. Daniel Perron had a feeling that the boy might cross. This, of course, was not a feeling. It was an apprehension based on the boy’s actions and Mr Perron’s own common sense. Luba Antoniak could have used the same common sense if she had been going slower. In my opinion, the accident would not have happened if Luba Antoniak had driven according to the standard of a reasonable and prudent driver. I conclude that she is liable for Dean’s loss.
The City’s liability – i. At what time did the accident happen; when did the crossing guard leave and where was Dean at the time?
[58] The City takes the position that it was not required to provide a crossing guard. It concedes, however, that having voluntarily undertaken to provide one, it was responsible to execute the crossing guard programme prudently during the times that it had undertaken to do so. Therefore, if the guard left before 8:40, and if Dean arrived at the crosswalk before 8:40, it would be liable. It cannot seriously be doubted that if the crossing guard had been at the crosswalk when Dean arrived, he would have used her services and he would not have been hurt.
[59] The direct evidence of the time at the accident in summary:
Marc Schulze
Looked at his clock radio before getting out of his car after the accident. It was 8:38.
Helen Kaumeyer
Looked at her watch when leaving the crosswalk. It was 8:40.
Daniel Perron
The accident could have taken place just before or just after 8:40.
Susan Round
Helen Kaumeyer was leaving the crosswalk before the 8:40 bell, but Dean Saumur had not arrived within sight of the crosswalk after the 8:40 bell.
Luba Antoniak
She heard “8:42” announced on the radio one minute before the accident.
[60] Again, the 911 call was received at 08:42:58.
[61] Evidence about the time it took Dean to arrive at the scene of the accident is relevant to the time of the accident and the time of Dean’s arrival at the crosswalk. Apart from the evidence about distances and average walking speeds, the highlights of that evidence:
Janet Saumur
Dean left the house about 8:30, later than his usual 8:20 departure time. He had done his homework. He changed into a raincoat at the last minute.
Ian Perry
On Stoneybrook Drive Dean was walking at standard walking speed.
Susan Round
On Stoneybrook Drive Dean was walking very slow with his head down. Later, on Westbury approaching Gray, Dean was still plodding along.
Tory Pomerleau
Went outside around 8:35 or 8:40. After seeing the accident went into the house and fumbled for her keys on the way in. It took her 2-3 minutes to make the call to 911. Dean was not running, but hurrying toward the crosswalk. He scurried past her.
Darryl Currie
When Dean turned left onto Gray Road he was walking at a normal pace.
Daniel Perron
Dean turned left onto Gray Road walking at a normal pace.
[62] I do not give any weight to Mrs Antoniak’s account of having heard 8:42 announced on the radio. I do not find her reliable for reasons that I have already stated.
[63] Ian Perry has Dean walking at a normal pace on Stoneybrook. Darryl Currie and Daniel Perron have him walking at a normal pace on Gray, perhaps speeding up toward the end, as Tory Pomerleau said. In the face of that evidence, I do not accept Susan Round’s evidence that Dean was walking slow and with his head down either on Stoneybrook or Gray. Furthermore, Susan Round seemed to me to be distracted and emotional. She stumbled badly in giving the time she left her own house. I have little confidence in her as a witness. I am not prepared to accept that she is right about hearing the school bell that morning.
[64] I found Janet Saumur to be credible, even if she tended to be a bit over-inclusive.
[65] I found Darryl Currie to be credible and Tory Pomerleau to be particularly credible. Tory was a girl who had great responsibility. She had the key to the house. She was in charge of her brothers. It was particularly important for her to focus on the family routine and what was going on before the bus came.
[66] Tory Pomerleau’s evidence does not preclude the accident having happened before 8:40. Her estimate of two or three minutes is approximate. Tory was shocked by the accident, but not in a state of shock. She ran to the boy, looked at him, no doubt watched what Marc Schulze was doing for some brief period of time. She had to be asked to call 911. She fumbled with her key to get in the door. We do not know how many times the phone rang before the operator picked up. Tory could easily have taken more than three minutes to get through to 911.
[67] Tory’s evidence is supported by Janet Saumur’s evidence about the time Dean left for school, which I accept. If Dean left the house at 8:30, which I think he did, he would have arrived at the crosswalk within 7 minutes even at a slow normal rate of 1.3 metres per second.
[68] On the various scenarios in evidence based on distances, slow, medium and fast average walking speeds and Dean’s time of departure from home it is very unlikely that Dean appeared at Gray and Westbury later than 8:40, even Janet Saumur’s “about 8:30” is interpreted as “8:35”.
[69] Furthermore, I was very impressed with Marc Schulze. He was focused, observant, compassionate and cool-headed. I have no doubt that he looked at his clock just before getting out of the car and that the clock said 8:38. Taking that together with the evidence of average speeds and distances and Tory’s evidence about the time it took to call 911, I conclude that Mr Schulze’s clock was about right. To me the combination of this evidence outweighs Helen Kaumeyer’s account. I do not believe her.
[70] I was not impressed with her anyway. She told me that she only crossed six to ten children in the morning and that they had a pattern, but she did not know where Dean fit into this pattern. I found that surprising. I think her evidence depended more on habit and less on actual memory than she let on.
[71] She may have set her watch to the television, but she did not stay until 8:40 that morning. Ms Kaumeyer was in the habit of leaving early. That is why Lorraine Currie and Janet Saumur noticed and remembered that she was not always there when they thought she should be. I think that she was accustomed to crossing her expected students, then looking for stragglers and leaving, if not every day, at least on a rainy day.
[72] Craig Wilkinson’s opinion as to where Ms Kaumeyer and Dean Saumur might have been at certain times is based on the arbitrary assumption that the accident occurred 28 seconds before the 911 call. I have rejected that assumption. As a result I place no weight on Mr Wilkinson’s opinion in this regard. I do accept that it took Ms Kaumeyer less than two minutes to pack up and leave. I find that Dean Saumur arrived at the crosswalk shortly before 8:40 am, by which time Helen Kaumeyer was gone. If she had been there, Dean would not have crossed without her assistance, and she would have got him safely across the street. The default of the City’s agent is a second cause of Dean’s loss. The City is liable on account of it.
The City’s liability – ii. The crossing guard duty times
[73] The adequacy of the fixed duty times is moot as far as the parties are concerned. The accident happened during the fixed duty time. The deficiency in the duty time played no causative role on the facts as I found them. A ruling on this question would have implications beyond the parties. I do not see the benefit to the administration of justice in ruling on this question when it is not necessary to do so.
[74] To determine whether the City would be liable on this head of claim no findings of credibility are necessary. The facts are not controversial. Their legal consequences are disputed. It is a matter of legal duty and standards of reasonableness. If it became necessary, an appellate court reviewing the record would be in as good a position to decide the question as I am.
Contributory negligence
[75] Dean was a boy of average intelligence. He had walked to school for some months. He had been taught to look both ways before crossing and to follow the crossing guard’s instructions. I am not satisfied that he had experience with crossing a busy four-lane highway unsupervised. He may have been late for school before, but he could have been driven.
[76] Much was made of the rain hood. I take nothing from the fact that the rain hood prevented Mr de Groot from recognizing Dean. I do not imagine that it stayed in place after Dean landed on his head and rolled on the ground. I think that it impaired Dean’s peripheral vision, but not his forward vision, the way any rain hood would do. It would not have prevented Dean from seeing left if he had remembered to look left before he crossed. Unfortunately, he did not.
[77] Based on my assessment of the witnesses and their evidence, I find that Dean walked at a normal pace to the crosswalk, speeding up a bit before he arrived. He was not necessarily walking with his head down at this point. He may have seen the Antoniak vehicle as he walked south, but if he did he was not equipped at his age to judge distance and speed. Or he may not have seen it because he forgot to look left before he crossed. He knew better, but children are notoriously forgetful when they are distracted or confused. I think that Dean was confused because he arrived at the crosswalk and there was no crossing guard to help him. He did not dart into traffic. I accept that Marc Schulze saw him standing in or near the crosswalk, which implies that his action of turning right and stepping into the roadway was interrupted for at least a perceptible moment. Dean stepped into the lane at a quick walk or jog and got a few steps into the lane when he was struck. I am not satisfied in all this that Dean acted below the standard of a reasonably prudent 10-year-old of like intelligence and experience. Contributory negligence is not proven on the preponderance of the evidence.
Apportionment of blame
[78] In my view the negligence of Luba Antoniak and the negligence of the City were of equal importance in causing the plaintiffs’ loss. I apportion blame between them at 50% each.
Conclusion
[79] I award judgment to the plaintiffs. If necessary the plaintiffs may make written submissions to costs within 10 days of release of this judgment, the defendant within 10 days thereafter.
J.A. Ramsay J.
Released: 2015-04-13
Saumur v. Antoniak, CITATION: 2015 ONSC 2380
COURT FILE NO.: 02/7354
DATE: 2015-04-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dean Saumur by his litigation guardian Janet Saumur and the said Janet Saumur
Plaintiffs
– and –
Luba Antoniak, Lester Antoniak and the City of Hamilton
Defendants
REASONS FOR JUDGMENT
J.A. Ramsay J.
Released: 2015-04-13