The vast majority of motor vehicle accidents resulting from negligence occur because a driver failed to take due care. And, the leading causes of automobile accidents are distracted driving, speeding, impaired driving, driver fatigue and failing to yield. However, sometimes a passenger causes or contributes to a crash and in such a case, the passenger can be held liable or at least, contributorily liable, for damages sought by an injured party. Here is a recent case involving passenger negligence.
McKay v. Park (2019) is a civil action involving a driver who sought to have the injury lawsuit against her dismissed on the grounds that her passenger is entirely responsible for the car crash.
This case began when, during an argument, the driver’s passenger reached over and grabbed the steering wheel, causing the car to collide almost immediately with another vehicle. A woman in the second vehicle (the plaintiff) was seriously injured and she sued the driver and passenger for damages, alleging that both were negligent and caused her injuries. The plaintiff’s action made reference to Ontario’s Highway Traffic Act s. 192(2), which states that vehicle owners have vicarious liability for negligence in the operation of their vehicle unless the vehicle was in the possession of another person without the owner’s consent.
In a previous motion, the driver, Ms. Park, sought to have the claim summarily dismissed against her. She also motioned for a determination that her co-defendant in the personal injury lawsuit, Mr. Hnatiuk, is not entitled to insurance coverage under Ms. Park’s vehicle insurance policy issued by State Farm. In an initial judgement, the court allowed both of Ms. Park’s motions and found that there was no genuine issue requiring trial. However, the plaintiff’s insurer, TD Home and Auto Insurance, appealed both decisions in the 2019 civil action.
The Appeal Court agreed with the motion judge with respect to concluding that the driver, Ms. Park, is not responsible for causing the accident and there is no genuine issue requiring trial. The Appeal judge disagreed with TD Home’s argument that the motion judge erred in finding that Ms. Park remained in possession of the car and is therefore vicariously liable, despite her passenger’s act of grabbing the steering wheel. Rather, the Appeal judge found that Mr. Hnatiuk took control of the car away from Ms. Park when he seized the wheel. And, by seizing the wheel, Mr. Hnatiuk effectively had possession of the car without Ms. Park’s consent, and this circumstance exempts the driver from variously liability under s. 192(2) of the Act.
The Appeal judge also rejected TD Home’s arguments that there is no genuine issue requiring trial. TD Home argued that Ms. Park was negligent by operating her car while her front-seat passenger, who had a volatile and impulsive nature, was agitated; she was distracted by the argument; and was negligent in her driving. The Appeal judge disagreed and found that, based on the evidence, the motions judge was entitled to find that it was not foreseeable that the passenger would grab the wheel, and there were no incidents prior to this action that suggested that Ms. Park was negligent in her driving. Accordingly, the Appeal Court dismissed TD Home’s appeal of the motion judge’s decision to summarily allow Ms. Park to be removed as a defendant in the lawsuit.
The second issue to be decided on appeal was whether Mr. Hnatiuk is entitled to indemnity under Ms. Park’s vehicle insurance policy insured by State Farm. In the previous decision, the motion judge found that Mr. Hnatiuk was not covered by the State Farm policy but did not give a full explanation of her reasoning in coming to this conclusion or whether she agreed with Ms. Park’s argument that Mr. Hnatiuk lost his status as an occupant when he seized the steering wheel without the driver’s consent. The Appeal judge found that the motion judge erred in not making this decision “based on a question of law raised by the pleadings”. Therefore, the Court of Appeal set aside the decision determining that Mr. Hnatiuk is not entitled to be indemnified under Ms. Park’s policy and, if desired by either party, this question may be determined in a future proceeding.
If you were injured in a car accident and are considering claiming damages, talk to a knowledgeable car accident lawyer with Injury Lawyers of Ontario. An initial consultation is free and provides an excellent opportunity to have all your legal questions answered and will help make your decision easier on how next to proceed.