I don't see anything where I absolve TDSB of any potential negligence. I can see them being deemed negligent, but notwithstanding that I can also see the OP being deemed at fault as well for not adjusting to what appears to be obvious debris in the lane ahead. Again, it's not a zero sum game.
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Dropped a bike, grass on the road, need advise
- Thread starter Elena P.
- Start date
I don't see anything where I absolve TDSB of any potential negligence. I can see them being deemed negligent, but notwithstanding that I can also see the OP being deemed at fault as well for not adjusting to what appears to be obvious debris in the lane ahead. Again, it's not a zero sum game.
kwtoxman
Well-known member
Your multiple posts are silent on TDSB but mention that the rider will likely be found negligent. If you don't speak about any potential TDSB negligence but continue about the rider, it's reasonable to think that you don't find the TDSB to be potentially negligent.
As for OP fault, how do you know the debris was obvious? Especially to the rider at the time of the crash. It is obvious in the pictures, but it's a whopper assumption to say the rider had that or a similar kind of kind of view.
I understand and agree that depending on how the details of the accident pan out, there could be some distributed negligence, but it also be attributed totally to the TDSB. It's all in the details, which have not been shared here.
As for OP fault, how do you know the debris was obvious? Especially to the rider at the time of the crash. It is obvious in the pictures, but it's a whopper assumption to say the rider had that or a similar kind of kind of view.
I understand and agree that depending on how the details of the accident pan out, there could be some distributed negligence, but it also be attributed totally to the TDSB. It's all in the details, which have not been shared here.
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I say that the rider will likely be found at fault as far as insurance fault goes because that is the usual outcome of a single-vehicle collision that happens as a result of running into an object already laying on the road.
As you say, it's obvious in the pictures. If the OP is going to make claim against the TDSB, she will have to provide evidence of negligence. That evidence will be the pictures. Her insurance company will have access to that evidence and she will have to make a case as to why she didn't adjust to the debris on the road.
You seem to think that the Ontario Fault Determination Rules gives her a possible out on fault assignation. They are a set of regulations that come under the Insurance Act. If you go into the Insurance Act you will find reference to fault determination rules appears only in the Direct Compensation — Property Damage section 263.(1) Accidents involving two or more insured automobiles. http://www.ontario.ca/laws/statute/90i08#s263s1
A lawn mower doesn't qualify as a vehicle. If there is no other insured vehicle involved, the fault determination rules do not apply.
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Another option here is for the rider, who is apparently uninjured and was able to ride away to chalk it up to experience, figure out what he could have done differently to avoid the situation (if anything), fix his bike without engaging his insurance company and move on.
You guys are arguing differnet and seperate issues. negligence of the TDSB (or lack thereof), has NOTHING to do with the FDR and what the insurer will assess.
The OP has already stated they have contacted a lawyer, why don't we let them do what they do. The Op will decide based upon ACTUAL legal advice which is the best route for them to follow.
One point however Griff the FDR DO INDEED apply if it is a single vehicle collision, as the insurer will ALWAYS deem the driver/rider at fault. An inanimate object, (in this case grass), can't be assigned fault under the FDR. Back in the ealry 90's when my vehicle slid off an improperly maintained country road the FDR's applied as=nd I was assessed 100% fault as it was a single vehicle collision. the municipality had failed in it's duty to maintain the road and they were sued by my insurer but that had NOTHING to do with the FDR.
The OP has already stated they have contacted a lawyer, why don't we let them do what they do. The Op will decide based upon ACTUAL legal advice which is the best route for them to follow.
One point however Griff the FDR DO INDEED apply if it is a single vehicle collision, as the insurer will ALWAYS deem the driver/rider at fault. An inanimate object, (in this case grass), can't be assigned fault under the FDR. Back in the ealry 90's when my vehicle slid off an improperly maintained country road the FDR's applied as=nd I was assessed 100% fault as it was a single vehicle collision. the municipality had failed in it's duty to maintain the road and they were sued by my insurer but that had NOTHING to do with the FDR.
I think if you read the legislation, you'll find the fault determination rules (that is, the formal legislated regulation 668 under the Insurance Act) are in place to assign proportional fault only when two or more vehicles collide, without having to take the matter to civil litigation to assign fault. Under your DCPD coverage and even without collision coverage in place on your vehicle, you would be entitled to receive some damage recovery so long as you were not deemed to be 100% at fault in a crash.
With a single vehicle collision, there is no other insured party that may or may not bear proportional fault in a collision. Hence, the fault determination regulation rules do not come into play because there is no apportioning of fault among more than one operator, and because all fault will almost always lay on the head of the operator of the single vehicle involved. This is borne out by the references to the FDR in legislation appearing only in a section referring to collisions involving two or more insured vehicles.
The only types of exceptions I can think of to automatic assignation of fault in a single vehicle crash is in the event of objects flying into your path or the ground opening up right in front of you. Had that grass been launched into the OP's face as she approached (and not already just laying on the pavement) then obviously there should be no fault assigned to her.
It would be the equivalent of a deer jumping on the road in front of you. Hitting a live deer on the jump is usually not considered an at-fault collision, but hitting a dead one already on the road is.
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kwtoxman
Well-known member
All these suppositions imo appear contradict the FSCO claims and fault determination explanation.
https://www.fsco.gov.on.ca/en/auto/brochures/Pages/brochure_claims.aspx
https://www.fsco.gov.on.ca/en/auto/brochures/Pages/brochure_claims.aspx#insurance
quoted from there, more to read
However I have a very limited understanding of the rules of negligence law and how they have been interpreted in auto insurance fault determination.
https://www.fsco.gov.on.ca/en/auto/brochures/Pages/brochure_claims.aspx
https://www.fsco.gov.on.ca/en/auto/brochures/Pages/brochure_claims.aspx#insurance
quoted from there, more to read
However I have a very limited understanding of the rules of negligence law and how they have been interpreted in auto insurance fault determination.
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Key word in your quote is "each", and how the total fault is apportioned to "each" driver.
If there is only one driver, "each" is not applicable and neither are the Fault Determination Rules in Regulation 668. Surely you noticed that all of the scenarios in that regulation involve more than one vehicle?
kwtoxman
Well-known member
I'm not seeing the linkage you do. The language notes that if the accident is not described by any of the scenarios (e.g., a single vehicle accident) then fault is allocated ......
Nowhere else is there any note of single vehicle accidents or related items falling under some sort of different fault determination. That may be the case, but it isn't worded as such and if so it is very poorly worded.
Yes, I saw the FDR scenarios are all more than one vehicle.
Nowhere else is there any note of single vehicle accidents or related items falling under some sort of different fault determination. That may be the case, but it isn't worded as such and if so it is very poorly worded.
Yes, I saw the FDR scenarios are all more than one vehicle.
The FRD rules are a regulation that is specific to only one section of the Insurance Act. That section appears in the Direct Compensation — Property Damage section 263.(1) "Accidents involving two or more insured automobiles" of the Insurance Act. That is why all the examples in the FDR show two or more vehicles.
Go look it up. http://www.ontario.ca/laws/statute/90i08#s263s1
i believe the "disconnect" is that Griff your pointing out the determination of fault as ONLy being completed under the strict definition of the FDR. As we know the insurance industry often doesn't follow the "strict" interpretation of the Insurance Act.
The insurers still "assign" fault without the use of the FDR's. If you call your insurer and ask "if i have a single vehicle collision then how is fault assigned given that under the FDR's there is no provision for a single vehice collision". Do you hnestly believe they will say "hey your right we never noticed that I guess your not at fault because it doesn't fall within the strict interpretation of the FDR'S" lol
No obviously they have taken it upon themselves, (and seeing the FSCO has seemingly accepted it), to assign fault outside of the FDR's.
The insurers still "assign" fault without the use of the FDR's. If you call your insurer and ask "if i have a single vehicle collision then how is fault assigned given that under the FDR's there is no provision for a single vehice collision". Do you hnestly believe they will say "hey your right we never noticed that I guess your not at fault because it doesn't fall within the strict interpretation of the FDR'S" lol
No obviously they have taken it upon themselves, (and seeing the FSCO has seemingly accepted it), to assign fault outside of the FDR's.
Gryphon
Well-known member
Not to interrupt you Lawyer types and legal arguments, but...
The roads are the roads are the roads.
They may be covered in debris, including (but not limited to) sand, mud, gravel, leaves, dead critters, blood, radiator fluid, motor oil... etc.
Not to mention potholes, gutters, streetcar tracks, curbs...
The 'real world' roads don't resemble manicured racetracks - not at all.
Now, GTAMers know this stuff already.
The reason I mention it is because, riding in the rain is dangerous; especially if the pavement is not clean! As the OP will testify.
There can be no reasonable expectation of the road not having grass on it (just like everything else). It is there.
It might be there tomorrow; it might be there next month...
And it is after all only a 50 km/h zone, anyway.
Point is, this is what happens! Trying to blame or sue someone isn't always going to cut it.
Maybe the local (Jamestown) kids threw grass on the road - who knows?
But you can't be trying to sue somebody every time you have a wipeout, thinking you have been promised perfect, spotless roads...
Because you have not.
The roads are the roads are the roads.
They may be covered in debris, including (but not limited to) sand, mud, gravel, leaves, dead critters, blood, radiator fluid, motor oil... etc.
Not to mention potholes, gutters, streetcar tracks, curbs...
The 'real world' roads don't resemble manicured racetracks - not at all.
Now, GTAMers know this stuff already.
The reason I mention it is because, riding in the rain is dangerous; especially if the pavement is not clean! As the OP will testify.
There can be no reasonable expectation of the road not having grass on it (just like everything else). It is there.
It might be there tomorrow; it might be there next month...
And it is after all only a 50 km/h zone, anyway.
Point is, this is what happens! Trying to blame or sue someone isn't always going to cut it.
Maybe the local (Jamestown) kids threw grass on the road - who knows?
But you can't be trying to sue somebody every time you have a wipeout, thinking you have been promised perfect, spotless roads...
Because you have not.
What I'm saying is that the FDR's (the regulations) apply only to multi-vehicle crashes. This is in response to kwtoxman's assertion that those FDRs give the OP a possible out and his quoting of a part of the FDRs in support of that assertion.
I'm not saying that the insurance company won't assign fault in the event of a single vehicle crash. By now most everyone should know that they will, but that happens outside the FDRs. I'm asserting only that the FDR's (the regulation) and any possible outs in that regulation would not apply in the OP's case.
Fully agreed and all this suing is one of the reasons that atv/dirt bike trails are being lost and fenced up all the time.
You don't get it.
So if you lose your life while a city of Toronto sinkhole collapses underneath you; tough luck? sh1t happens? single vehicle collision = your fault?
your family won't sue?
There is no such thing as a frivolous lawsuit, if it goes to trial... a jury of your peers decides liability and awards compensation money. If OP chooses the personal injury and lawsuit route, they won't see any money for at least 2-3 years. All repairs and medical care may be out of pocket until then.
We pay an extraordinary amount of taxes to keep our roads in safe conditions. If that safety is jeopardized by negligence on behalf of a contractor, city or the school board; they must be held responsible. They might as well have stood by the road and pushed OP to the ground.
Wow.
Nobody died here.
A sinkhole?????
C'mon.
So if someone wipes out, injures himself to the extent that he's off work due to broken bones, (not quite) writes off his bike, because he ran over a bag containing multiple soiled diapers he can/should sue....somebody?
I have heard of someone who fell off due to the above by the way.
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