A Kamloops man who injured himself when he literally ran into a young girl’s bicycle tire and fell down, has lost his case in court.
Rosario Perilli has pursued his claim for damages against the girl, who was 10 at the time of the accident in August 2014 until a decision was made earlier this month. He not only named the middle-schooler as a defendant, he also sued her grandparents because they “did not properly instruct Ms. Marlow in the safe operation of a bicycle.”
It all began innocently enough. Perilli was jogging along a sidewalk on Robson Street when he came upon three young girls on bicycles, two on the sidewalk and another on the road, according to a written decision by Kamloops Supreme Court Justice Dev Dley.
Perilli went onto the road to pass the girls, but when Victoria Marlow failed to maintain her path, he “struck the rear tire and fell to the ground.”
He injured a shoulder and required surgery.
In the lawsuit, Perilli, represented by lawyers Frank Scordo and Jessica Vliegenthart, claimed Marlow breached her duty of care, specifically by:
cycling without due care and attention or without reasonable consideration for other persons using the roadway contrary to Section 183(14)(a) & (b) of the Motor Vehicle Act
changing direction or speed on a roadway without [signaling] clearly contrary to Section 183(14)(a) & (b) of the Motor Vehicle Act,R.S.B.C. 1996, c. 318 and amendments thereto;
cycling on a sidewalk on the left side of the highway while riding abreast with other cyclists, contrary to Section 183(2)(a)(c) and (d) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318;
cycling recklessly or carelessly without due regard to the safety of other individuals using the roadway;
failing to maintain an adequate lookout;
failing to take any or adequate steps to avoid colliding with the Plaintiff.
Dley said that the question was whether Marlow breached the rules of the road or the duty of care she owed to others.
Marlow told the court that she saw Perilli behind her and her friends after looking back, and gradually moved closer to the curb to give him room. She looked back again and concluded he was not going to pass because he had slowed down and fallen back, Dley said.
She moved back to her original place on the road, and there was nothing to indicate that movement was out of the ordinary or would create a hazard. That was when Perilli struck her tire.
"I accept Ms. Marlow’s evidence that she leaned to move her bike away from the curb and did so gradually," Dley said. "I do not accept that it was a sudden or dangerous maneuver.”
He described her as a “polite and mature young person” and dismissed allegations that she was “being untruthful or trying too buttress her position” when she was cross-examined and changed minor points in her evidence.
Dley said Marlow's actions weren't perfect, and another look behind her may have shown 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.”
Dley ruled Marlow did not breach her standard of care, which meant her grandparents were not liable either.
He dismissed the action with costs.
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