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Crazy Ontario Car Accident Case to kick off 2017: Bodenstein v. Penley

New cases are released all the time. In Canada’s common law system, new cases help build and develop our legal system. Think of it as an ever changing, evolving, legal landscape.

Some cases stay the course. Other cases change things slightly. But some cases make your eyes POP and make you question “what was going on in the Courtroom during the trial” or “what were they thinking when they released this decision“?!?!?!?

To kick off 2017 for car accident law cases in Ontario, we have one of those decisions that makes you go “hmmmmmm” and really scratch your head.

Ladies and gentlemen; I hereby introduce you to the Judge and Jury decision of Bodenstein v. Penley, 2017 ONSC 27. This case was just released at the start of 2017.

This was jury trial which appears to have lasted over the course of a few weeks, perhaps even more. A few things to note about this case:

  1. The car accident took place on August 22, 2003
  2. The Jury was charged, meaning that the meat and bones of the trial was done on December 21, 2016
  3. The Judge then released her decision on a motion on liability alone on January 3, 2017

That means that from the date of the car accident, until the date that the trial decision was released from the Judge; 4883 days had passed!!!! For all you geeks out there, that’s 13 years, 4 months and 12 days from car accident to final verdict!!!! Talk about a long time to wait to have your day in Court!

Here’s where it gets interesting. This appears to be a left hand turn case. That means that one party was attempting to make a left hand turn, when their vehicle collided with another vehicle traveling through the intersection.

There is no dispute that a car accident took place. The Plaintiff was injured, although those injuries were disputed by the Defendant.

The jury came back after hearing the trial and found that NOBODY was at fault. The apportionment of liability was not accounted for at all on either party. It was a 0-0 split which is unheard of when a car accident took place. If a party gets shut out, it’s usually 0-100%; of 1-99%. Either way, the liability figures need to add up to 100%.

Their version of events was as follows:

The plaintiffs allege that the accident was caused by the negligence of Ms. Penley who was driving the vehicle owned by her father Stephen Penley (now deceased).  The defendants allege that the accident was caused by the negligence of the plaintiff Leon Bodenstein (“Mr. Bodenstein”).

The plaintiffs’ version of events at trial was that Ms. Penley, while under the influence of alcohol illegally drove through a red light and struck the defendants’ vehicle head on.  The defendants’ version of events at trial was that Mr. Bodenstein was attempting to make a left hand turn in front of the defendants’ vehicle which was proceeding through a green light.

If a car accident happened, then there needs to be some apportionment  of liability on a party. If the accident was a 50-50, then the jury should have reflected this in their verdict. To have a 0-0 split, does not acknowledge that a car accident happened at all. If the Plaintiff was at fault, then make it so. Perhaps a 0-100 split in favor of the Defendant would have been supported if the Jury found in favor of the Defendant.  If fault was to be equally apportioned between the parties, then this is done by making a 50-50 split on liability.

It should be noted that these 50-50 splits are common in left hand turn cases where liability is hotly contested by the parties.London-Head-Shot-Brian-Goldfinger-201x300

The jury charge (meaning the question put to the jury) is important to look at in this case.

That portion of the jury charge which related to liability is set out at paragraph [84] of the charge as follows:

[84]      Members of the jury, you have a difficult task.  As you know, there are several different versions of what occurred on the evening of August 22, 2003.  You will have to decide which version you accept as to what actually happened.  Once you have reviewed the evidence, your own notes and recollections of the evidence you may find that the negligence of Ms. Penley and the negligence of Mr. Bodenstein contributed equally to Mr. Bodenstein’s injuries or you may find that you cannot decide how to divide the blame.  In that case you would find them each 50% to blame.  Liability will then be divided equally between them.  On the other hand, you may find Ms. Penley, say, 75% to blame and Mr. Bodenstein 25% to blame, or conversely, you may find Mr. Bodenstein, say, 60% to blame and Ms. Penley 40% to blame, or any other combination that adds up to 100%.  You may also find Ms. Penley or Mr. Bodenstein 100% to blame.

The key sentence that the Judge used here was “or any other combination that adds up to 100%“. A 0-0 liability split does NOT add up to 100%, as the Judge had instructed. The Judge also states that if you cannot decide how to divide the blame, “you would find them each 50% to blame“. The 0-0 liability split simply disregards the Judge’s instruction to the Jury.

In spite of this, the Judge refused to overturn the Jury’s verdict, or to have the Jury go back to re-assess their verdict. Here is the Judge’s rationale:

I find that the evidence in this case does provide an evidentiary foundation for the jury’s verdict (albeit a somewhat “gossamer” one).  The jury was instructed on the onus of proof. It was within their jurisdiction, and in accordance with the instructions given to them in the charge, to conclude that neither party had proven negligence. That is, that Ms. Penley was not negligent because Mr. Bodenstein’s description of the accident was not borne out by the debris trail or Ms. Polhamus’ description of the accident.  Mr. Bodenstein was not negligent based on his own evidence and the evidence of the debris trail.  The jury found, as they were entitled to do, that neither party had met their burden of proof.  Therefore, there was an evidentiary foundation for their verdict, which was a body of evidence that they did not accept or believe.

The net effect of the 0-0 split, is that the Plaintiff, despite being involved in a car accident and getting injured ends up with ZERO compensation. I believe that poor Mr Bodenstein and his lawyers are in for some work ahead of them. This decision ought to be appealed and further reviewed by a higher Court. The result will be additional legal costs and time required for a car accident case which took place around 13.4 years ago. The wheels of justice turn slowly, and they can turn in strange ways at times; as highlighted in this odd case to open up 2017. This is why everyone loves a good jury trial. No matter how many years of experience you have, you never know what to expect.


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