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Jetz v. Calgary Olympic Development

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Kunal Arora

on 22 October 2013

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Transcript of Jetz v. Calgary Olympic Development

BUS 393

WHO’S INVOLVED?
Plaintiff: David Jetz, age 25, highly skilled competitive cyclist for approx. 7 years

Defendant: Calgary Olympic Development Association (CODA), owner of 215 acres of Canada Olympic Park located on a north slope of a hill overlooking the Bowness area of Calgary

Canada Olympic Park (COP) *refer to map
-TransCanada Hwy No. 1 runs in an east-west direction
-Paved two-lane road known as “Canada Olympic Road”
-Towards South is uphill
-Towards North is downhill, with a gradient of 8 degrees
-Seven switchback curves going down steep hill

What Happened?
On August 4, 1998, David Jetz, 21, was thrown off his road bike when he struck a speed bump on Canada Olympic Road. *refer to speed bump location on the map*

The parties agreed that the Plaintiff’s total damages: $67, 500
Trial concerned with the issue of liability.
Reason for Speed Bump
Installed by CODA on July 31, 1998 as a traffic calming measure as a response to complaints
Plaintiff, who frequently used the hill for training rides, was unaware of installation
CODA was concerned that speeders endangered pedestrians crossing the road at crosswalks
*Refer to map with the parking lot, mini golf course, buildings
Evidence: considerable amount of pedestrian traffic near the bottom half of the hill

COP OPEN FOR CYCLIST TRAINING
Plaintiff and fellow competitive cyclist, Ms. Marney Dansereau, set out on a training ride on their road bikes
Entered COP at 1pm through the South Gate, which was open and unmanned
Plaintiff has travelled this road on training rights hundreds of times before
Evidence: Canada Olympic Road habitually used as a training course of cyclists, known by CODA
No evidence of CODA preventing cyclists using that road
On June 1998: CODA Management Team Meeting Minutes: “Closing the gates could turn clientele away”

Jetz v. Calgary Olympic
Development

Witnessess
Plaintiff:
Marney Dansereau, fellow cyclist day of accident
Mark Saar, cyclist who had the same accident suffering injuries the day after
Dr. John Morrall, qualified Transportation Engineer and Consultant
Chris Dusik, cyclist who had the same accident suffering injuries the day after
Jeffery Durand, competitive cyclist who witnessed the accident 150 meters away

Witnessess
Defendant:
Randy R. Skimmings, Manager of Safety, Community and Special events at CODA
Chris Hutchins, Coordinator of Administration, Safety and Security Services at CODA
Ronald G. Bosh, Owner and General Manager of Calgary Paving
Gordon J. Patterson, Director of Operations at COP
Carol D. Scott, Worked at the mini-golf course at COP
Frank Perich, a professional engineer

CODA
Issues
3 Issues:
What duty of care did CODA owe to the Plaintiff?
Did CODA breach that duty of care?
Did the Plaintiff Jetz by his actions cause or contribute to the accident occurring?

WHAT DUTY OF CARE DID CODA OWE TO THE PLAINTIFF?
Canada Olympic Road is a private road
Therefore: the common law as to an occupier's’ liability and duty of care applies

Four Categories:
-A contractual entrant, which would include a person who paid consideration for entry
-An invitee, entering at the invitation of the occupier for the purpose of a transaction
-A licensee, either implied consent or express permission of the occupier to be on premises
-A trespasser, enters without either the express or implied permission of the occupier

WHAT IS THE PLAINTIFF?
Obviously not an invitee or contractual entrant, so either a licensee or a trespasser
Defendant’s opinion: Plaintiff did not have the express permission to be on the COP premises
-He did not buy a ticket, therefore he was a trespasser
Evidence:
Unmanned gates that were open and unattended during all business hours
Defendant relies on signs, which it had posted near entrances saying
“Private Road for Park Patrons Only”
CODA made no effort whatsoever to collect entry fees or prevent entry from cyclists

Which category do you think the Plaintiff falls under?
What is the plaintiff?
Mr. Skimmings admitted that CODA knew that cyclists/motorists used the road as a shortcut to the hwy from the springbreak area
CODA Management Team Meeting Minutes indicates 50-80% of traffic is “shortcutting”
Admits the sign had no effect in keeping cyclists/motorists from “short-cutting” through COP

CODA placed signs at both entrances saying:

CYCLISTS PLEASE:
-Ride Single File
-Wear Helmets
-Obey Speed Limits
-Obtain ticket

If CODA was serious about cyclists requiring a ticket to enter the park, why were the entrances unmanned?
THE DUTY OF AN OCCUPIER TO A LICENSEE
McErlean vs. Sarel et al (licensee): Ontario Court of Appeal

It is to take reasonable care to avoid foreseeable risk of harm from any unusual danger on the occupiers’ premises of which the occupier actually has knowledge or of which he ought to have knowledge because he was aware of the circumstances. A licensee’s knowledge of the danger goes only to the question of contributory negligence or volenti.

Whats the plaintiff?
-Chris Hutchings said that they were planning on selling tickets according to a new program that would be implemented the following year in order to generate income for CODA

Evidence:
Sign shows the CODA not only permitted cyclists, but also encouraged them to come
The new program which implements ticket purchases is irrelevant to this case
Therefore, he was not a trespasser based on evidence, but a licensee

MCERLEAN and JETZ
Related to McErlean:
-Trail bike rider was injured while racing around a sharp curve in an abandoned gravel pit owned by the City of Brampton
-Town of Brampton made no effort to prohibit anyone from entering its property when it was aware entry was happening
-By not taking action to exclude persons from the property, City of Brampton had a duty to the plaintiff as a licensee
However: city was not liable, as the curve was similar to many curves on private roads

FOR THIS CASE
This case has even stronger facts since CODA not only gave implied permission, but also encouraged its use by cyclists (not wanting to “turn away clientele”)

Therefore: CODA’s duty of care to the Plaintiff is outlined in the McErlean case

DID CODA BREACH THAT DUTY OF CARE?
Plaintiff thinks that CODA’s implementation of the speed bump was negligent and foolhardy
Facts surrounding construction of the speed bump:
Mr. Skimmings is responsible for safety at COP
Meeting in June 1998, CODA decided to install speed bump on the road
Sought advice from the City of Calgary Transportation Department Officials with the respect to the installation
Letter came back dating January 28, 1998 from the City of Calgary which provided specifications for a “Seminole” speed hump
Skimmings did not seek advice from the city about proper signing standards and placement criteria for speed bump warning signs, even though advice was available free of charge

SPEED BUMP VS. SPEED HUMP
Speed bumps are constructed for parking lots
Provokes a far more violent reaction to vehicles crossing it

Speed humps are constructed in city streets where traffic calming is an objective

Speed bump vs Speed hump
TRANSPORTATION ASSOCIATION OF CANADA (TAC)
Gordon J. Pattison, civil engineering technologist, was responsible for building the speed bump
-Supervised construction of the road for the 1988 Winter Olympics
-Responsible for its maintenance

Transportation Association of Canada Guidelines (TAC Guidelines), provided to ensure proper road design and the construction of roadways to ensure safety of the public
*Including speed hump design requirements and the proper signage

Pattison admitted to knowing about and not bothering to consult the TAC Guidelines

Skimmings, Pattison, and Burger, none whom are engineers, decided:
-Where to locate the speed bump
-How to design and built the speed bump
-What kind of signage and where to locate them

Pattison designed the speed bump that wasn’t close to the “Seminole” speed hump recommended by the City of Calgary or the speed hump design recommended by TAC
CODA speed bump narrower width with a vertical rise twice as steep as the humps

Construction
SPEED BUMP RATIONALIZATION
Evidence shows that the reason why the speed hump design was not followed was because the contractor didn’t have the right equipment required to build the hump which met the guidelines
Therefore, speed bump was constructed.

Defendant argues that they were only guidelines are not applicable to private roadways



continued...
Frank Perich states that the TAC guidelines represent the minimum standard for road design and they are intended to be accessible and “used by members of the community with an interest and an involvement with traffic calming”

Evidence: CODA was obviously motivated by traffic calming so should have followed guidelines.
Defence counsel found a number of speed bump specifications in an effort to show that there was no universally accepted specification for bumps and warning signs




Continued..
Plaintiff counsel points out that these speed bump specifications are for parking lots, and not for roadways

Also, Mr. Perich admits that the CODA speed bump would give a vehicle twice the shock travelling over it than the recommended speed hump design (relevant to bicycles as well)
-Mr. Perich, however, had an unreliable written report, showed his poor memory
EXPERT KNOWLEDGE
Dr. John Morrall, highly qualified Transportation Engineer with international experience
-Executive Director of the Transportation Engineering Association of Canada
-Along with other professional transportation engineering organizations
-Author of 160 Engineering publications

Witness called by the Plaintiff

Morrall's Opinion
His evidence: All municipalities in Canada follow the TAC guidelines
Compared CODA speed bump and the TAC Guidelines speed hump “side by side”

Concluded that because the bump could raise a vehicle up and down very quickly, it could be hazardous to a bicyclist
TAC speed hump allows a safe conveyance of the vehicle without presenting a hazard to the passengers or to the stability of the vehicle
-Perich supported Morrall’s conclusion
“Seminole” speed hump recommended by City of Calgary was very similar to TAC’s


Morrall's Opinion
Argues that Canada Olympic Road is a “collector road” (even tour buses travel on it)

States it is necessary to design a road and traffic control devices appropriate to the road
*CODA’s speed bump was made for parking lots
Morall's Conclusion
It was inappropriate for CODA to have put in place the speed bump in question

It was inappropriate to leave the speed bump black and not paint it yellow so people can see exactly where it is located

Also, TAC Guidelines recommend a triangular shaped warning sign to indicate the presence of a speed bump well ahead of it’s location.

WARNING SIGNS
Municipalities and provinces in Canada follow TAC standards
Speed bump warning sign: yellow with black lettering
One sign at a time
Clearly visible
A bump symbol sign is preferred
Speed bump sign and pedestrian crossing sign were positioned above each other
Unrelated as were not at the same location
Pedestrian crossing was located some distance down the hill of speed bump sign
1 to 1.5 above the ground
Background buildings at COP can cause the sign to be absorbed from one’s view
Black asphalt coloured

Standards
In the Case
Recommended signs
Morall's Test
- himself rode the bicycle at the site of location
- at 20 kmph- relatively stable
- at 30 kmph- out of control situation
- black line marking resembles resurfacing of a roadway after a trenching job
- low reaction time: 2.5 seconds

Reference to past cases
Defendant: Prete vs University of Calgary, (1989) A.J no. 162 (Alta Q.B)
- Judge J. Montgomery: dismissed plaintiff’s claim for damages suffered
- striking a speed bump in a PARKING LOT
- visibly clear
- case: Wickham vs 22079 B.C ltd
- pedestrian tripped over an unpainted speed bump
- she was not looking where she was going
- not because of the paint

Judge's Verdict
- Prete’s case: not a parking lot
- Hill: speed bumps are allowed
- Poor visibility
- Ambiguous warning signs
- Plaintiff (Jetz) was looking down
- Didn’t know about the speed bump
- Wickham's case: Bicylcle vs on foot
- Travelling donwhill with switchback curves
Judge's Verdict
Accepted Dr. Morrall’s evidences
- even preferred it against defendant’s Mr. Perich’s evidence
- CODA breached its duty of care
- collector roadway- CODA roadway
- not anywhere close to the seminole speed hump
- not constructed according to the TAC standards
- CODA was negligent in its breach of duty of care
- inappropriate placement of the speed bump
- warning sign inadequatley placed, no symbol sign
- poor visibility (background of the buildings)

Judge's Verdict
- pedestrian crossing & speed bump sign together
- speed bump not painted correctly
- black line of the speed bump was decietful
- two more accidents: David Dusik & Mark Saar
- CODA painted the speed bump yellow after the accidents
- moved the warning signs farther up the hill
- no further accidents occured
- count this evident as logically relevant
- CODA knew that they are at fault
- took preventive steps later on

Recommendation
- fluorescent colors
- portable sign with flashing lights
- for temporary basis till the roadway traffic becomes familiar

Was the plaintiff contributorily negligent?
- Plaintiff’s speed
- Jetz and Ms. Danseraue: 30 kmph (approx)
- Didn’t see lowly placed “speed bump ahead” sign
- Judge accepts this

Plaintiff's Negligency
David Dusik & Mark Saar
- cycled many times before on the road
- didn't see the sign or the bump
- contantly braking because of the pedestrian crossing ahead
- met with an accident
- speed 30 kmph
- judge accepts this evidence

CODA employee
- Christopher Hutchins
- “... hit the speed bump at 45 kmph,went over handle bars”

Plaintiff's Negligency
Mr.Dusik
- statement taken right after the accident
- denied writing 45 kmph
- cross examination: it was the employee's handwriting not Dusik's
- wrote 45 over 40 with no explanation why?
- Judge lost faith in this evident

Caroll Scott
- Defence's evidence: employee at mini golf course property
- "More than 30, probably 40" & "travelling fast very fast"
- Cross examination: can't estimate the speed in kmph
- Clear contradiction of her own evidence
-Judge lost faith in this evidence

Our Verdict
Agree with the judge!
negligent
- sign was put up before its implementation
- changed the signs
- justified to provide the plaintiff with $ 67,500
- economic loss: loss of work
- general damages: physical injury

What are your views about the judge’s decision?

Do you think the compensation was too much or too low?

Do you think they knew they were negligent?

What do you think would have changed the course of the case?

Verdict continued
Railway Co. v. City of Calgary 59 D.L.R. (2d) 642

Toth v. Canadian Pacific Railway Co. (1908) 8 C.R.C.

Anderson v. MapleRidge (District) (1992) B.C.J. No. 1860

Anderson vs Erickson (1992) B.C.J no. 1860

Canadian Pacific Railway Co. v. City of Calgary (supra)

- evidence of remedial actions
- no accidents post these actions
- it itself an admissible evidence in a negligence case

Plaintiff's Negligency
Jeffrey Durand- eyewitness
- he was downhill from the speed bump
- stated that the speed was 30 kmph (approx)
- knew what they would have hit
- speed bump
- called the ambulance
- went to CODA' office to question them about the speed bump
- Cross examination: was firm with his observation

Judge's Final Verdict
-hit the speed bump at 30 kmph
- safe speed would be 20 kmph
- misleading warning signs
- speed hump: easier to cross at 40 kmph
- CODA is 100 responsible
- 67,500 + cost of action

CODA's warning sign
Agenda
Background
Issues
Judge's verdict
Our Analysis
Full transcript