A Bonavista Peninsula woman has been awarded over $400,000 after the courts ruled the driver of a tractor-trailer that hit her car in 2010 was more at fault in the collision than she was.
The incident that lead to court action happened on Dec. 15, 2010, on Route 230, between the community of Morley’s Siding and the Clarenville airstrip.
Supreme Court Justice Daniel M. Boone, in a written decision in November, said both the driver of the Sexton’s Lumber truck, Darrell Payne, and the other driver, Nicole Furlong, were negligent and contributed to the collision but Payne bore more responsibility.
In his summation and decision, Justice Boone noted that stretch of Route 230 is a paved two-lane road with gravel shoulders and no dedicated passing lanes.
Furlong and another car were following behind Payne in the tractor trailer as the vehicles drove through Morley’s Siding. Both cars pulled out to pass the tractor trailer as they left Morley’s Siding and got to an area with a 90-km/h speed limit.
Shortly after passing the tractor trailer, Furlong noticed her passenger, a five-year-old child belonging to a friend, was vomiting. Furlong pulled her car over on the side of the road. Two of the vehicle’s wheels were still on the asphalt.
The driver of the other car behind Furlong, Peggy Russell, testified Furlong’s stopping “was not slow or gradual, but rather abrupt, ‘kind of fast.’”
Russell slowed down to 20 km/h and drove around Furlong's car. The tractor-trailer driven by Payne, however, did not stop in time and hit both cars.
Payne testified that just after they had left Morley’s Siding and he was still accelerating, travelling at about 80 km/h, he noticed Furlong pulling out to pass his truck. He continued to speed up as the second car passed him and as they pulled back in front of him he recognized that his safety zone had been compromised. The safety zone for a truck that size is about 150 metres.
He first took his foot from the accelerator, and applied the brake. When he saw traffic approaching in the opposite direction, he braked harder.
Payne saw Furlong pull off the road and Russell slow down but testified he recognized at that time a collision was unavoidable. His vehicle first struck the passenger side of the Russell vehicle and then the rear of the Furlong car.
The court heard an expert witness, Raymond Skinner, a commercial driving instructor with the College of the North Atlantic.
Skinner testified he teaches students that once a vehicle moves to pass a tractor-trailer they have to begin to slow down since it's likely the passing vehicle will pull back in front of the tractor-trailer inside the safety zone.
Justice Boone noted the failure of Payne to slow down when the cars passed him made him negligent.
“The only way a truck driver can maintain the safety zone when being passed is to slow down by removing the foot from the accelerator and applying the brakes as soon as the driver recognizes that another driver is pulling out to pass him,” Boone wrote.
“Mr. Payne did not do this. He took no action to maintain or re-establish his safety zone until Ms. Russell completed her pass. Indeed, Mr. Payne testified that he not only failed to slow down but continued to accelerate as both (cars) were passing him.”
Not all the blame for the collision lay with Payne, however, Justice Boone ruled.
Furlong testified that she hadn’t looked in her rearview mirrors before slowing down and she was aware she had just passed a fully-loaded tractor-trailer on a narrow road.
“Her abrupt maneuver caused Russell to slow abruptly and the two cars effectively then blocked the passage of the Sexton truck. Mr. Payne was then required to either pull to the side or cross into oncoming traffic.
"If the Plaintiff had glanced in her rearview mirror and observed the close proximity of the following vehicles, she could have pulled to the side more gradually allowing the following vehicles time to respond without a collision resulting.”
He ruled that Furlong was one-third at fault for the collision and that Payne was two-thirds responsible.
The $648,862.50 awarded to Furlong was for general damages, lost future and past employment income and housekeeping capacity, and future care. A third of it was deducted due to her fault in the collision and she ended up with $434,737.87.