Who's At Fault? | Page 2 | GTAMotorcycle.com

Who's At Fault?

Is a crying shame because it looks like a really nice car, but at the very least you should frankenstein stitch it up with zip ties so it doesn't crack any further.
 
It's the height of the curb that did the damage. Look at the height of the curb as compared to the skirt on the bumper... it folded the skirt, thus cracking / scraping it. If I had a pick up truck, none of this would be an issue as I would have cleared it. Having said that, I have a hard copy picture of the curb and you can see where other cars have done the same as me, hit it... only they drove off not caring. Perhaps that explains the female thing!

The first video is video at the scene of the crime so to speak. It just occurred.

The evidence that there was no preexisting damage to the bumper is seen at the body shop where I got the quote to fix the bumper. Two years prior a young girl rear ended me very lightly in the middle of a traffic jam. I had to calm her down as she was freaking out. I just took her plate number and went to a body shop in Barrie that is family run and has great reviews. They took the bumper off to inspect for damage and came back and said "you're the luckiest guy around, there's not even a mark on the bumper!" Insurance claim closed. They never even charged me to re & re the bumper.

His carwash portion of the business is open... the service bays have signs on them "permanently closed." How he's accomplished this is seen in his Google Reviews... arguing with customers that he and his staff did not strip the wheel nuts on the customers BMW. What a great location he has too. There are two other mechanic shops in Wasaga Beach that have a two week waiting list they are so busy. He had the building up for sale all summer, or perhaps the bank did for 1.2 million. It's just that prime a location. It looks like they are allowing him to run the carwash portion.

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@nakkers

As I wrote, to have my eyes on both exits and entrances of the parking lot. The one where I'm situated, if you back out of the vacuum stall in a 90 degree fashion, you run the risk of a car zipping in that entrance rear-ending you. The way I back up straight allows me the greatest field of vision of the entrances / exits should a car come zipping in... which they do all the time.

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@KLR_Guy

No, the carwash owner has been aware of it since he moved it himself in the winter of 2016 with his plow. The incident is June 1 / 2016. The fact that he has not walked the perimeter of his business and corrected this obstruction in March, April, May of 2016 kind of demonstrates why he is chapter 11 doesn't it? And that with a location and a building that most mechanic shop owners could only dream of in a small town, he's sitting on the track of the carwash as I enter smoking a joint with his buddy demonstrates his attitude and lack of care and thus neglect. If this business was a corporation, he would be in a lot of trouble.

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Now without context as to how the lawyer "threatened" you, the lawyer is 100% factually correct. If you lose, the defence can ask, and generally are awarded their costs. It depends on how much the lawyer "pads" their bill. Usually the judge will ask what the costs are, you have the right to ask the judge to order them to provide a detailed accounting. But in reality how will you know if the lawyer bills for 30 hours how long they actually spent researching and dealing with their client?

Now even if you win, and provide a estimate of say $3,000 to fix the damage the judge can still determine you were say 90% at fault for not seeing the object, and award you only $300

It isn't uncommon for legal fees to be in the $3 - 5,000 range, so best ensure you have a VERY strong case.

As for their defence, that is the BEST option they have. Had they said you didn't hit it, then they would have to be 100% sure you didn't have any witnesses that could say you did indeed hit it. By stating that all the damage consisted of is a small scratch, they are laying the ground work to minimize the damage claim. Then I suspect they will argue you bear the greater liability, as you should have observed the item.
@hedo

Yes, I agree. There is right and wrong and then there's the law. I agree with your post 100% which is why I'm surveying GTAM'ers...you guys are a tough / impartial crowd that tell it like it is. Thanks!

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If there is nothing in law or bylaws that state those curbs have to be pinned, I don't see the property owner being liable. Moved a couple days later makes no difference. Could have been moved by another car hitting it. Realistically it's not sticking out that far as to be "in the middle of traffic" as it were. Unfortunately it happend, but from an unbiased viewpoint, doesn't seem like you have a strong case unless I'm missing something.
You read my mind Riceburner. I've been on the phone with city bylaw and zoning today to find out if pinning the prefab curbs is mandatory or optional. If it's optional that's not a good thing for me. If it is mandatory, it's not a good thing for him. Thank you for your advice.

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You backed your car into a stationary object. It sucks and crap happens but I don't understand how this could be anyone's fault but your own.

A decent body shop could epoxy that crack and do a quick blow in on the bumper for not a lot of money and you would never notice it.
It's a 2006 Mitsubishi Eclipse GT-P... there are no aero kits available anywhere left in North America. Mitsubishi stopped producing the Eclipse in 2012. The best the body shop can do is re & re / plastic weld / fill / buff / prime and paint the skirt. They quoted $800.

As a side note... Mitsubishi just reintroduced the Eclipse as an SUV / CUV infuriating Eclipse owners worldwide. When it comes to Japanese corporations, I often scratch my head. Makes my car continue to appreciate in value tho!

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Is a crying shame because it looks like a really nice car, but at the very least you should frankenstein stitch it up with zip ties so it doesn't crack any further.
It's rustproofed and parked for the winter now. Great advice tho... thank you.

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Hate to say it but if your going to rely on a report from the body shop that the bumper was pristine 2 years ago, that won't fly. Any lawyer, (even one who got his diploma from a cheerios box), will argue that the damage could have been sustained at ANY point in the previous 2 years, it would be a different story had the car been to the body shop 2 days prior.

2 years ago my doctor would have said I was in GREAT shape, but 2 years and 2 accidents later, not so much...lol

It's the height of the curb that did the damage. Look at the height of the curb as compared to the skirt on the bumper... it folded the skirt, thus cracking / scraping it. If I had a pick up truck, none of this would be an issue as I would have cleared it. Having said that, I have a hard copy picture of the curb and you can see where other cars have done the same as me, hit it... only they drove off not caring. Perhaps that explains the female thing!

The first video is video at the scene of the crime so to speak. It just occurred.

The evidence that there was no preexisting damage to the bumper is seen at the body shop where I got the quote to fix the bumper. Two years prior a young girl rear ended me very lightly in the middle of a traffic jam. I had to calm her down as she was freaking out. I just took her plate number and went to a body shop in Barrie that is family run and has great reviews. They took the bumper off to inspect for damage and came back and said "you're the luckiest guy around, there's not even a mark on the bumper!" Insurance claim closed. They never even charged me to re & re the bumper.

His carwash portion of the business is open... the service bays have signs on them "permanently closed." How he's accomplished this is seen in his Google Reviews... arguing with customers that he and his staff did not strip the wheel nuts on the customers BMW. What a great location he has too. There are two other mechanic shops in Wasaga Beach that have a two week waiting list they are so busy. He had the building up for sale all summer, or perhaps the bank did for 1.2 million. It's just that prime a location. It looks like they are allowing him to run the carwash portion.

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A lot would depend on who has the best lawyer if it went to court. As the damage amount isn't all that high it could be settled in small claims court.

You would have to check the limits for the particular jurisdiction. Also with small claims court there are limits to legal costs. The last time I checked, several years ago, the maximum that could be awarded for costs was a few hundred dollars. It wouldn't be a suit of a thousand dollars with a fifty thousand dollar legal tab.

It is private property but I assume public access. It is different from fully private where someone has to jump a fence to get in. There should be some degree of responsibility for the owner.

Would it be seen differently in a court if a female tripped over a similar obstacle while walking?

A property owner can't leave an open excavation unprotected so......?
 
Thank you for all your input, it's very helpful. I never mentioned that the owner didn't get his defence in on time... he's just one of those guys. Thus I put forward a motion to find him in default... but the judge insisted that this case had to come before the court as what I have here is not "liquidated damages" ie a contract with a builder or a contractor to finish my basement. Once the defendant is found in default, he's not allowed to show up to in court to make his case. His lawyer called me and threatened that I would be responsible for the costs to motion the Court to remove the default status. I thought the law was the law, you don't make your case within the alloted time, you're out. Turns out that you can motion the court to remove the default finding if you have a good excuse. Again, there is right and wrong and then there's the law. His lawyer asked that I voluntarily remove the motion to default, and I did as apparently judges don't look to kindly at plaintiffs that move to fast to motion to default. There is a high success rate for lawyers who petition the court for a motion to set aside the default judgment. This lawyer was threatening me with those court costs. So I removed it voluntarily.. as I can't for the life of me figure out what his defence would be. As it turns out, he has none. But via lawyer trickery, a corrupt legal system, I now realize that this kind of intimidatiion works and I could end up paying for the whole thing, including his costs.

Strangely, his lawyer keeps emailing me asking me if I wish to continue or walk away, each of us washing our hands of the whole thing and each eating our own legal costs. I think he realizes that he's going to have to dig a defence out of his ass and hope for the best. I think he's wondering why his intimidatiion hasn't worked by now. Perhaps some people fear lawyers and just fold.

At the end of the day a solid case for me is as Riceburner wrote. If the zoning and bylaws require those prefab curbs to be pinned, he's pretty much f'ed. Else, it's probably not worth the risk.

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Every time a lawyer writes a letter he sends a bill. This is why I suggest looking at the small claims option.

I get your point about cars zooming around in parking lots. Whenever possible I back in.

If this is the joint on River Rd I Google street viewed it but all looked good circa 2015.
 
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one good thing about him missing the deadline
is you'll have good grounds for reduction of costs
should the court find for defendant
shouldn't have to pay for his incompetent defense

and as it sounds like you're self representing
your costs are not changing

his lawyer is probably used to dragging things out
until plaintiff looses desire as costs go up

has there been no indication of a settlement?
 
Thank you for all your input, it's very helpful. I never mentioned that the owner didn't get his defence in on time... he's just one of those guys. Thus I put forward a motion to find him in default... but the judge insisted that this case had to come before the court as what I have here is not "liquidated damages" ie a contract with a builder or a contractor to finish my basement. Once the defendant is found in default, he's not allowed to show up to in court to make his case. His lawyer called me and threatened that I would be responsible for the costs to motion the Court to remove the default status. I thought the law was the law, you don't make your case within the alloted time, you're out. Turns out that you can motion the court to remove the default finding if you have a good excuse. Again, there is right and wrong and then there's the law. His lawyer asked that I voluntarily remove the motion to default, and I did as apparently judges don't look to kindly at plaintiffs that move to fast to motion to default. There is a high success rate for lawyers who petition the court for a motion to set aside the default judgment. This lawyer was threatening me with those court costs. So I removed it voluntarily.. as I can't for the life of me figure out what his defence would be. As it turns out, he has none. But via lawyer trickery, a corrupt legal system, I now realize that this kind of intimidatiion works and I could end up paying for the whole thing, including his costs.

Strangely, his lawyer keeps emailing me asking me if I wish to continue or walk away, each of us washing our hands of the whole thing and each eating our own legal costs. I think he realizes that he's going to have to dig a defence out of his ass and hope for the best. I think he's wondering why his intimidatiion hasn't worked by now. Perhaps some people fear lawyers and just fold.

At the end of the day a solid case for me is as Riceburner wrote. If the zoning and bylaws require those prefab curbs to be pinned, he's pretty much f'ed. Else, it's probably not worth the risk.

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Each time the opposing lawyer contacts you, he is documenting his time spent on the case which means $$$ going in his pocket.

If the business owner has questionable ethics, who’s not to say he makes up a story about how you recklessly backed out of the spot and damaged his curb...all corroborated by his sidekick who “saw the whole thing happen.”

If you don’t think he has a defence, then they will discredit you and your actions.
 
Well, again what you may feel is right or wrong is immaterial, all that matter is what the law states. As for the poster who said check the limits, the limits are the same for the entire province for small claims court, ($25,000 max suit). MLadin you haven't told us how much the suit has been filed for. For those unaware, when you commence and action you must list an amount, (that is the amount your seeking), the only thing that can increase it are legal costs, or interest, (which is a set rate by the court, normally VERY VERY little).

The defendant, missed his deadline to file his defence, but the judges also don't want the judgement appealed, so that is generally why they permit the motion to extend the case. Just because he in your estimation doesn't have a defence, doesn't mean he doesn't.

Have you not gone to your settlement conference as yet? It is held by a small claims judge, (NOT the one who will eventually be assigned to hear the case, should it go that far). you will get a VERY good sense from that, and more specifically the tone set by the judge as to the validity of each others case. They will often advise one side or the other to settle.

The question is did you sue the owner personally, or the business or both? If the business declares, and goes thru a bankruptcy filing, (chapter 11 is a US based term), and they are discharged, (basically declared insolvent), then your going to be screwed on collecting form that. Just because the judge, (if you win), orders the other side to pay, don't expect your money anytime soon. Many who have a judgement against them simply refuse to pay. There is a VERY long and difficult process to go through in an attempt to collect. unless he has valuable assets, (house for example), he really has nothing to lose by not paying.

Even if you can register a lien against his house, you won't collect unless he sells or tries to remortgage, (even then it is a crap shoot if the person at the courthouse catches the lien.

Now once your done the settlement conference the next step is to get a court date, (currently here in York Region your looking at a MINIMUM of a 2+ year wait).

So having said all that, are you prepared to drive the vehicle damaged for up to say 3 years, (as you have already learned, he can drag this out for a VERY long time)? Even then knowing you aren't likely to collect a penny? Or is it more "cost effective" not just from a financial perspective, but also from a mental health perspective to spend the $800 and be done with it? ONLY, you can make that decision. Given he has hired a lawyer, it is highly doubtful he is going to settle anytime soon
 
@nakkers

As I wrote, to have my eyes on both exits and entrances of the parking lot. The one where I'm situated, if you back out of the vacuum stall in a 90 degree fashion, you run the risk of a car zipping in that entrance rear-ending you. The way I back up straight allows me the greatest field of vision of the entrances / exits should a car come zipping in... which they do all the time.

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My inner Judge Judy would ask,

“Did you not look around the vehicle and the immediate area you intended to back out from before entering the vehicle and backing out?”













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At the end of the day a solid case for me is as Riceburner wrote. If the zoning and bylaws require those prefab curbs to be pinned, he's pretty much f'ed. Else, it's probably not worth the risk.

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Very doubtful it's this clear cut. For $800+- your lawsuit i say you walk and keep an eye on ebay/JDM sites for a replacement.
 
Famous landmark Canadian case: If the mailman slips and breaks his arm on your property because you didn't shovel the pathway...
 
If the plan was to get him to admit it was in the wrong spot and move it back, you’ve succeeded.
I’ve seen others do that with city speed bumps that were too high for the posted speed limit;
City ripped them out and put lower ones in, at taxpayers’ expense quite quickly.
But as for any damage or time & effort compensation, ha, ha, ha, that moves so slowly as to cost you more just to try.
 

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