Ten-year-old cyclist not a fault for runner’s fall

In the recent judgment of Perilli v. Marlow, 2018 BCSC 495, the British Columbia Supreme Court had to determine whether a 10-year-old child cyclist was liable for obstructing the path of a runner, resulting in a trip and fall injury.

At about 5:00 p.m. On August 27, 2014, Mr. Perilli was out jogging in the area of Robson Street, Kamloops, British Columbia; it was sunny and warm. He typically ran about three times per week on a route that took him through the residential neighbourhood. The defendant, Ms. Marlow, was ten-years-old at the time of the accident. She had been taught how to ride a bicycle and to follow the rules of the road by her grandparents (the other defendants). Ms. Marlow and two friends were riding their bicycles on Robson Street on the day of the accident. Robson Street only has a sidewalk on the south side. There were cars parked on the north side. The girls decided that it would be safer to ride on the south side so they could take advantage of the sidewalk. They rode three abreast and in a direction that faced oncoming traffic. Two of the girls were on the sidewalk while Ms. Marlow was riding on the street adjacent to the curb. The girls were talking to each other as they rode along. Mr. Perilli had been running on the sidewalk in the same direction the girls were cycling. He was running faster than the girls were riding and intended to go by them.

There was no room to pass on the sidewalk so he decided to go around Ms. Marlow on the road. As Mr. Perilli maneuvered around Ms. Marlow, she moved into his path. Mr. Perilli’s foot struck the back wheel and, as he attempted to avoid a collision, he fell onto his shoulder. He suffered various injures with the most serious being to his shoulder which required surgery.

When addressing whether Ms. Marlow violated any statutory laws, the Court found that Ms. Marlow was not on the sidewalk and thus cannot be said to have breached her statutory duty in that regard. Ms. Marlow was not in breach of that subsection of the Motor Vehicle Act prohibiting a cyclist from riding abreast of another cyclist on a roadway. While Ms. Marlow has a duty to use her hands to signal her intentions to turn to require a cyclist to signal such movements would result in the cyclist spending much of her time operating the unit with one hand and signalling with the other. That would not be in the spirit of the safety aspects of the Act. Therefore, Ms. Marlow was not in breach of the statutory requirement to signal a turn.

The Court did find that Ms. Marlow breached her statutory duty under s. 183(2)(c) of the Act by failing to ride as near as practicable to right side of the road. The question is whether that breach contributed to the accident in a way that attracts liability in negligence.

In arriving at its decision, the Court found:

1. Marlow looked back twice and was paying attention to her surroundings.
2. It was reasonable for her to move back to her original place on the roadway.
3. When Ms. Marlow moved back there was nothing to indicate that such a movement was out of the ordinary or would create a hazard to Mr. Perilli.
4. Marlow leaned to move her bike away from the curb and did so gradually. It was not a sudden or dangerous maneuver.
5. Marlow was not required to continually look behind her. Requiring Ms. Marlow to do so would place her and others at greater peril than someone in the position of Mr. Perilli who was following and able to see everything in front of him.
6. Marlow’s actions were not perfect. Another look behind her may have alerted her that Mr. Perilli was about to pass. However, the standard of care is not one of perfection and Ms. Marlow’s actions (looking behind her only twice) are not inconsistent with what a similarly aged young girl would have reasonably done in the circumstances.
7. Marlow was part of a group that had blocked the sidewalk thus obstructing Mr. Perilli’s access. However, this was no different than if two people pushing strollers or walking their dogs had clogged the sidewalk with a cyclist alongside. Mr. Perilli would still have had to pass by.
8. Riding on the left side of the road did not contribute to the accident. It was reasonable for the cyclists to seek the sanctuary of the sidewalk on the side of the road that was facing traffic. By riding against the traffic, Ms. Marlow did not endanger Mr. Perilli.

 

The Court ultimately held:

[44]         I, therefore, conclude that Ms. Marlow acted reasonably in the circumstances and did not breach the standard of care that she owed to others using the roadway. Since Ms. Marlow was not in breach, there can be no liability against her grandparents.

At Hauer and Co we represent victims of Pedestrian and Bicycle Accidents