Animal on the road as a cause of an accident
Animals on the road are a frequent contributing cause of accidents. Whether or not a driver will be excused for striking an animal, or getting in an accident when swerving for an animal, will depend on the circumstances of the particular case. Questions such as the following may be relevant:
- Was the driver paying attention, and if not, would he or she have been able to avoid the collision if he had been paying proper attention?
- Was the driver speeding?
- Was the area known for having wildlife on the road, and should the driver have been driving more carefully on account of that known risk?
In Pitt Enterprises Ltd. v. Farkes, 2005 BCCA 511 the defendant collided with a moose standing in his lane and that caused his vehicle to move into the oncoming lane and strike the plaintiff’s vehicle. The trial judge found that the defendant was not travelling too fast in the circumstances and that the accident would not necessarily have been avoided even if the defendant had been travelling at the speed suggested by the plaintiff. The trial judge found that the defendant had provided an explanation for his vehicle being in the wrong lane which was equally consistent with negligence and no negligence, thus rebutting the presumption of negligence arising from his presence in the wrong lane.
In Olsen v. Barrett, 2002 BCSC 877 the plaintiff was injured when the motor cycle she was a passenger on collided with a deer that ran onto the road. Although the plaintiff and her husband who was driving the motorcycle inclined their evidence in favour of a finding of liability, the court held that there was insufficient evidence to warrant an inference of negligence and concluded that the accident occurred because the deer ran into the road at high speed and that the defendant had insufficient time to avoid the accident.
In Wong v. Gonzalez, 2000 BCPC 205 the plaintiff’s vehicle was rear ended when the defendant driver was distracted after being stung by a bee. The two vehicles were initially stopped but the defendant took her foot off the brake after being stung by the bee, allowing her vehicle to move forward and strike the plaintiff’s vehicle. The court found the defendant liable because she had an opportunity to deal with the bee in her car before it stung her i.e. she was stopped and could simply have put the vehicle in park the moment the bee entered the vehicle.
In Fajardo v. Horianopoulos, 2006 BCSC 147 a driver hit a moose and knocked it into the oncoming lane, and then brought his truck to a stop in the lane he was traveling in. A vehicle behind the driver that first hit the moose saw the stopped truck and swerved into the oncoming lane to go around the stopped truck, but hit the moose lying in the oncoming lane, injuring himself. The injured driver who swerved and hit the moose lying in the oncoming lane said that the stopped driver was negligent in hitting moose and in not getting his truck off the road. The defendant said that he could not get the truck hazard lights to work, and that he was in shock and in a daze. The accident did not happen on a road known for moose sightings and the trial judge said that the defendant was not negligent in hitting the moose, but that in the circumstances he was negligent for not moving his truck off the road more promptly. Interestingly, because the plaintiff said that he would have swerved into the oncoming lane even if the defendants vehicle had been pulled over onto the shoulder, the trial judge held that the plaintiff would have struck the moose and been injured even if the defendant had not negligently left his vehicle in the road, and so the plaintiff’s claim was dismissed.
Mr. Fajardo testified that even if Mr. Horianopoulos’ vehicle had been on the shoulder, he would still, in taking evasive action, have driven over into the oncoming lane. Since the moose carcass was stretched over the whole of that lane, he still would have collided with the carcass. Thus the accident would have occurred in any event. I find that Mr. Horianopoulos’ negligence was not a cause of the accident. Accordingly, the plaintiff’s action is dismissed.
(Fajardo v. Horianopoulos, 2006 BCSC 147 at para. 40).
In McIntosh v. Maurer, 2005 BCCA 64 the plaintiff was injured when the vehicle she was a passenger in encountered a patch of black ice at about the same time the driver saw a wolf on the road ahead of her. In braking, or in attempting to avoid the wolf, the vehicle went off the road and the plaintiff was injured. The court found that the defendant had acted reasonably in the circumstances and was not liable.
In Boutcher v. Stewart (1989), 50 CCLT 77 (NBCA) a partridge flew through the driver’s open window and collided with his head. The dazed driver swerved into the oncoming lane and collided with a motorcyclist. The court found the defendant not liable:
Mr. Stewart has displaced the evidentiary onus on him to sufficiently explain why the collision occurred on his wrong side of the highway. Mr. Stewart has simply demonstrated that he took reasonable care.
(Boutcher v. Stewart (1989), 50 C.C.L.T. 77 (N.B.C.A.)).
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