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NEGLIGENCE - Duty and standard of care - Emergencies

Wednesday, March 21, 2018 @ 8:53 AM  


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Appeal by the plaintiff from summary judgment dismissing her Family Law action in negligence and from the cost award against her. The plaintiff’s son had been a passenger in a vehicle. An argument developed, causing the son to exit the vehicle. At some point he smashed the driver’s side window with an unknown object. He then reached inside the car and was attempting to open the car door and grab the steering wheel. The driver attempted to escape from the altercation and drove off in a panic, with the son holding onto and partly inside the car. The car hit a curb and the son fell from the car. He hit his head on the curb and died. The motion judge found the driver feared for his safety and that of his other passengers and reacted quickly in trying to escape. In these circumstances, the doctrine of emergency applied and the driver was not to be held to a standard of perfection. The motion judge concluded that the driver could not be faulted for his reaction to the son’s actions and that he was the author of his own misfortune. The motion judge awarded costs of $20,000 to the moving party, the insurer, and $12,500 to the defendant owner of the vehicle.

HELD: Appeal dismissed. The motion judge did not err in applying the doctrine of emergency to find that the driver did not fall short of the standard of care expected of him. It was implicit in the motion judge’s decision that she concluded that the driver did not anticipate the aggressive action taken by the son whereby his sudden attack and an attempt to force his way into the car caused the emergency. It was no error, much less a palpable and overriding error, for the motion judge to conclude that the driver did not anticipate these actions. The motion judge’s findings were supported on the record that was before her. The motion judge was entitled to conclude that there was no genuine issue requiring a trial and that summary judgment was appropriate. The costs order was reasonable and there was no basis to interfere with it on appeal.

Isaac Estate v. Matuszynska, [2018] O.J. No. 975, Ontario Court of Appeal, S.E. Pepall, P.D. Lauwers and G. Huscroft JJ.A., February 23, 2018. Digest No. TLD-March192018007