Spilled coffee in drive through deemed an ‘accident’

June 21, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Spilled Coffee in drive through is an ‘accident’

Dittmann v Aviva                              2016 ONSC 6429 (CanLII)

ONTARIO SUPERIOR COURT OF JUSTICE
SUMMARY JUDGMENT

Date of Decision: October 24, 2016
Heard Before: R. D. GORDON, R.S.J.

Aviva asks for a summary judgment that Ms. Dittmann’s claim be dismissed on the grounds that the loss was not an “accident” as defined in section 3(1) of the SABs.

Background

Early in the morning of July 7, 2014 Ms. Dittmann left her house to purchase a coffee from a McDonald’s Restaurant drive-through.  When she arrived at McDonald’s she ordered her coffee and then pulled alongside the drive-through window where she paid for and was handed her coffee.  She attempted to transfer the cup of coffee across her body to the vehicle’s cup holder while holding it by its lid when the cup released from the lid, spilling scalding coffee on Ms. Dittmann’s thighs.

Although the vehicle remained in gear and was running during the incident it was not in motion.  There was no collision involving the vehicle and no movement of the vehicle that contributed to the incident. However, Ms. Dittman was seated in the vehicle and had her lap and shoulder harness on.  These would have prevented her from taking any reflexive evasive action to avoid the spill or lessen the amount of coffee that spilled on her.

At the time of the incident Dittmann was insured with Aviva and was entitled to accident benefits if her injuries arose from an “accident”. Section 3(1) of the SABs defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.”

Both parties agree that this is an appropriate case for determination by way of summary judgment motion because whether Dittmann was involved in an “accident” is a question of law.  In addition, the main factual elements of the incident are not in dispute and there are no genuine factual issues requiring a trial.

Justice Gordon reviewed the law, and the SABs definitions with attention to the causation test. The Ontario Court of Appeal has determined that the causation test contained in section 3 of the SABS requires the consideration of two questions:

1.      Was the use or operation of the vehicle a cause of the injuries?
2.      If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things?”  In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?

Analysis

Aviva concedes that attending at a drive-through window at a fast-food restaurant to order food or beverage is within the range of the ordinary and well-known activities to which automobiles are put.  The purpose test has been met.

At issue is whether the use of the vehicle was a cause of Dittmann’s injuries (causation-in-fact or the “but for” test) and if so, whether there was an intervening act that caused the injuries that cannot be said to be part of the “ordinary course of things”.

Justice Gordon reviewed the facts and was content that but for the use of the vehicle Dittmann’s injuries would not have occurred - but for her use of the vehicle she would not have been in the drive-through lane, would not have received the coffee while in a seated position, would not have been transferring the coffee cup to the cup holder across her body, and would not have had the coffee spill on her lap.  In addition, but for her being seated and restrained by a lap and shoulder harness she may have been able to take evasive action to avoid or lessen the amount of coffee that was spilled on her.

Given this finding, the Justice was then left to determine if there was an intervening act that resulted in the injuries that cannot be said to be part of the “ordinary course of things”.  In this case before the automobile was being used to allow Dittmann to acquire a hot beverage at a drive-through window of a fast food restaurant.  That the beverage might inadvertently spill is a normal incident of the risk created by that use.  Accordingly, it cannot be said to have been outside the “ordinary course of things” as would be the case with such intervening acts as a drive-through attendant deliberately throwing hot coffee on the claimant or the claimant falling ill due to impurities in the coffee that was served.  Such intervening acts would not be a normal incident of the risk created using the car and would effectively break the chain of causation.

When Justice Gordon applied the test for direct causation prescribed in the cases noted above, I am driven to the conclusion that Dittmann’s use of the automobile was a direct cause of her injuries.

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