To find duty of care there must be circumstance or evidence to suggest a person should have reasonably foreseen risk of injury — that stolen vehicle could be operated unsafely - Rankin and JJ

May 14, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

To find a duty of care there must be some circumstance or evidence to suggest that a person ought to have reasonably foreseen the risk of injury — that the stolen vehicle could be operated unsafely. Plaintiff wrongdoing is integrated into the analysis through contributory negligence, as occurred here

Supreme Court Judgments - Rankin (Rankin’s Garage & Sales) v. J.J.

Date of Decision: May 11, 2018
Heard Before: Judges McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm

On appeal from Ontario

SUPREME COURT OF CANADA

Karakatsanis J. (McLachlin C.J. and Abella, Moldaver, Wagner, Côté and Rowe JJ.  concurring)

Brown J., Gascon J. (dissenting)

Torts — Negligence — Duty of Care — Foreseeability — Personal injury —Motor vehicles — Teenagers stealing vehicle from commercial garage and joyriding — Vehicle crashing causing serious injury to passenger — Whether business owes duty of care to injured passenger — Whether risk of personal injury reasonably foreseeable — Whether business had positive duty to guard against risk of theft by minors — Whether illegal conduct could sever any proximity between parties or negate prima facie duty of care — Whether lower courts erred in recognizing duty of care.         

J and his friend C, both then minors, were at the house of C’s mother drinking alcohol and smoking marijuana. Sometime after midnight, they left the house to walk around town, with the intention of stealing valuables from unlocked cars. Eventually they made their way to R (a commercial car garage) located near the main intersection. The garage property was not secured, and the boys began walking around the lot checking for unlocked cars. C found an unlocked car parked behind the garage. He opened it and found its keys in the ashtray. Though he did not have a driver’s license and had never driven a car on the road before, C decided to steal the car so that he could go and pick up a friend in a nearby town. C told J to “get in”, which he did. C drove the car out of the garage and on the highway where the car crashed. J suffered a catastrophic brain injury. Through his litigation guardian, J sued R, C and C’s mother for negligence.

At trial, it was held that R owed a duty of care to J. The jury found that all parties had been negligent and made the following apportionment of liability: R’s garage, 37 percent liable; C, 23 percent liable; C’s mother, 30 percent liable; and J, 10 percent liable. The Ontario Court of Appeal upheld the trial judge’s finding that R owed a duty of care to J and dismissed the appeal.

Issue:

1. The only issue in this appeal is whether R owed J a duty of care.              

Result:

1. Held (Gascon and Brown JJ. dissenting): The appeal should be allowed and the claim against R dismissed. R did not owe J a duty of care.

Majority Opinion per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Côté and Rowe JJ.:

This case can be resolved based on a straightforward application of existing tort law principles. J did not provide sufficient evidence to support the establishment of a duty of care owed by R.

A vehicle is stolen from a commercial garage. The vehicle is crashed. Someone is injured. Does the business owe a duty of care to the injured party? The question in this appeal is whether the courts below erred in recognizing a duty of care owed by a business that stores vehicles to someone who is injured following the theft of a vehicle.

Under tort law, liability is only imposed when a defendant breaches a duty of care. The Anns/Cooper test ensures that a duty of care will only be recognized when it is fair and just to do so. As such, it is necessary to approach each step in the test with analytical rigour. While common sense can play a useful role in assessing reasonable foreseeability, it is not enough, on its own, to ground the recognition of a new duty of care in this case. Aside from evidence that could establish a risk of theft in general, there was nothing else to connect the risk of theft of the car to the risk of someone being physically injured. For example, Rankin’s Garage had been in operation for many years and no evidence was presented to suggest that there was ever a risk of theft by minors at any point in its history.

This is not to say that a duty of care will never exist when a car is stolen from a commercial establishment and involved in an accident. Another plaintiff may establish that circumstances were such that the business ought to have foreseen the risk of personal injury. However, on this record, I conclude that the courts below erred in holding that Rankin’s Garage owed a duty of care to the plaintiff. I would allow the appeal and dismiss the claim against the appellant with costs in this Court and in the courts below.

There is no clear guidance in Canadian case law on whether a business owes a duty of care to someone who is injured following the theft of a vehicle from its premises. Therefore, an Anns/Cooper analysis will be conducted in this case. To establish a duty of care, there must be a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff. Once foreseeability and proximity are made out, a prima facie duty of care is established. Whether or not something is “reasonably foreseeable” is an objective test. The question is properly focussed on whether foreseeability was present prior to the incident occurring and not with the aid of 20/20 hindsight.

Here, it is not enough to determine simply whether the theft of the vehicle was reasonably foreseeable. The proper question to be asked is whether the type of harm suffered — personal injury — was reasonably foreseeable to someone in the position of R when considering the security of the vehicles stored at the garage. The evidence could establish, as the jury found, that R ought to have known of the risk of theft. However, physical injury is only foreseeable when there is something in the facts to suggest that there is not only a risk of theft, but a risk that the stolen vehicle might be operated in a dangerous manner. To find a duty of care, there must be some circumstance or evidence to suggest that a person in the position of R ought to have reasonably foreseen the risk of injury — that the stolen vehicle could be operated unsafely. In the circumstances of this case, the courts below relied upon the risk of theft by minors (who could well be inexperienced or reckless drivers) to connect the failure to secure the vehicles with the nature of the harm suffered, personal injury.

The risk of theft in general does not automatically include the risk of theft by minors.  Some evidentiary basis is required before a court can conclude that the risk of theft includes the risk of theft by minors. Here, there was insufficient evidence to suggest that minors would frequent the premises at night or be involved in joyriding or theft. Aside from evidence that could establish a risk of theft in general, there was nothing else in this case to connect the risk of theft of the car to the risk of someone being physically injured. Thus, the evidence did not provide specific circumstances to make it reasonably foreseeable that the stolen car might be driven in a way that would cause personal injury. The burden of establishing a prima facie duty of care owed by R has not been met. Reasonable foreseeability could not be established on this record.

Further, R, as a commercial garage, did not have a positive duty to guard against the risk of theft by minors. The fact that J was a minor does not automatically create an obligation to act.

It is not necessary to consider whether illegal conduct could sever the proximate relationship between the parties or negate a prima facie duty of care. However, the notion that illegal or immoral conduct by a plaintiff precludes the existence of a duty of care has consistently been rejected by the Court. Whether the personal injury caused by unsafe driving of the stolen car is suffered by the thief or a third party makes no analytical difference to the duty of care analysis. Both are reasonably foreseeable when circumstances connect the theft of the car to the unsafe operation of the stolen vehicle. While illegality can operate as a defence to a tort action in limited circumstances when it is necessary to preserve the integrity of the legal system, this concern does not arise in the circumstances of this case. Plaintiff wrongdoing is integrated into the analysis through contributory negligence, as occurred here.

J has not met the burden of establishing a prima facie duty of care owed by R. Reasonable foreseeability could not be established on this record. A business will only owe a duty to someone who is injured following the theft of a vehicle when, in addition to theft, the unsafe operation of the stolen vehicle was reasonably foreseeable.

Dissenting per Gascon and Brown JJ.:

The question raised by this appeal is whether the trial judge erred in finding that the appellant Rankin owed a duty of care to the respondent J. Having read the reasons of the majority, I disagree with its analysis in two respects that would lead me to dismiss the appeal.

First, this case does not require this Court to undertake a full Anns/Cooper analysis[1] to establish a novel duty of care. Instead, it involves the unremarkable application of a category of relationships that has long been recognized as imposing a duty of care — namely, “where the defendant’s act foreseeably causes physical harm to the plaintiff”.[2] So long as the trial judge did not err in finding that physical injury to J. was a reasonably foreseeable consequence of Rankin’s negligence, it follows that proximity is established on the basis of this previously recognized duty of care.

This brings me to the second point of divergence from the majority. On the record before her, the trial judge did not err in finding that physical injury to J. was a reasonably foreseeable consequence of Rankin’s negligence. I would therefore uphold the trial judge’s finding that a duty of care was owed.

The trial judge’s finding that R owed a duty of care to J should be upheld and the appeal should be dismissed. The relationship between R and J falls within a category of relationships in which a duty of care has been previously found to exist. This case does not require the Court to undertake a full analysis to establish a novel duty of care. It involves the application of a category of relationships that has long been recognized as imposing a duty of care — namely, where the defendant’s act foreseeably causes physical harm to the plaintiff. Physical injury to J was a reasonably foreseeable consequence of R’s negligence.

The reasonable foreseeability inquiry is objective (that is, into what reasonably ought to have been foreseen), and it must be undertaken from the standpoint of a reasonable person. Whether, therefore, the defendant actually foresaw the risk which ultimately manifested in injury to the plaintiff is not determinative. Reasonable foreseeability represents a low threshold and is usually quite easy to overcome. A plaintiff must merely provide evidence to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged. In this case, both the trial judge and the Court of Appeal held that it was reasonably foreseeable that an individual such as J could suffer physical injury as a consequence of R’s negligence in the locking, securing and storing of vehicles.

The majority concedes that the risk of theft was reasonably foreseeable but would have required additional evidence that theft would have occurred at the hands of a minor in order to find that physical injury to J was foreseeable. Even were J required to show that theft by a minor must have been reasonably foreseen in order to support the trial judge’s finding, J has satisfied that burden. Minors are no less likely to steal a car than any other individual. In order to establish a duty of care J was not required to show that the characteristics of the particular thief who stole the vehicle or the way in which the injury occurred were foreseeable. Imposition of a duty of care was conditioned in this case only upon J showing that physical injury to him was reasonably foreseeable under any circumstances flowing from R’s negligence. It was open to the trial judge to conclude that R’s negligence in leaving unattended vehicles unlocked with keys inside overnight could have led to reasonably foreseeable physical injury. There is no palpable and overriding error in these findings and, therefore, they should not be interfered with.

The trial judge’s finding of reasonably foreseeable physical injury is sufficient to bring the circumstances of this case within a category of relationships which has already been found to support a duty of care. As a matter of law, proximity is thereby established, and it is unnecessary to proceed to the second stage of the Anns/Cooper framework.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.