From all-terrain vehicles (ATVs) and dirt bikes to Skidoos and Jet Skis, recreational vehicles offer thrill-seeking enthusiasts various escapes into the great outdoors. Whether tearing through rugged terrain or cruising along scenic trails, these adventures can be exhilarating. However, amidst the excitement lies the potential for accidents and serious injuries, raising critical questions about negligence and personal injury claims, particularly for new or inexperienced riders.

This blog will explore various aspects of recreational vehicle accidents, offering insights into the legal principles governing personal injury claims and practical tips for safeguarding your rights in the event of an accident. From understanding the unique risks associated with different types of recreational vehicles, to navigating the complexities of negligence and liability, this blog will shed light on the often-overlooked aspects of outdoor recreation.

Careful Operation of Recreational Vehicles

Recreational vehicles are a mode of transportation that may be unfamiliar to many. These powerful vehicles generally require some instruction and insight into proper handling and operation. However, even an experienced driver can find themselves in a situation resulting in serious injuries to themselves and/or others.

If an accident occurs, the vehicle user may not be solely responsible for the resulting injuries. Instead, liability for such injuries may fall on the vehicle owner and/or the individual who authorized the user to ride on or drive the vehicle. This was the case in Desrochers v. McGinnis.

Plaintiff sustains serious brain injury in ATV accident

In this case, the plaintiff (respondent by cross-appeal) “MD” sustained a severe brain injury when the ATV she was driving went off an unpaved public dirt road and hit a tree. She was not wearing a helmet when the accident occurred. At this time, MD was the girlfriend of the defendant (appellant by cross-appeal) “PM”. PM’s father, “GM”, was the owner of the ATV involved in the accident.

Immediately prior to the accident, MD was travelling as a passenger on the ATV, which PM was driving. The ATV was driven across PM’s parents’ rural property to collect a truck. After arriving at the truck, PM disembarked the ATV and gave MD a “thumbs up” signal for her to drive the ATV back to his parent’s house on the property. However, as PM drove in the truck behind her, MD travelled along the roadway until she reached an S-curve in the road which she could not navigate, resulting in the crash.

Trial judge dismisses actions against defendant’s parents

Through her litigation guardian, MD commenced a claim against PM, GM, and PM’s mother, “CM”, for damages due to her injuries. MD’s parents, “SD” and “RD” also advanced claims for damages under section 61 of Ontario’s Family Law Act. The action against GM included a tort claim as well as a claim against GM as the owner of the ATV pursuant to section 192(2) of the Highway Traffic Act which states that:

192 (2) The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.

At trial, the Court held that the plaintiffs had “established liability against [PM] and assessed [MD’s] contributory negligence at 10 per cent.” Although GM and CM owed MD a duty of care, the trial judge found that they had not breached the applicable standard of care in the circumstances. As such, MD’s actions against GM and CM were dismissed and PM was found liable for MD’s injuries.

Both parties appeal trial judge’s decision

MD and her parents appealed the decision arguing that the trial judge erred in finding that GM and CM did not breach the duty of care and that GM was not liable for damages under the Highway Traffic Act. PM also appealed the decision arguing that the trial judge erred in finding that he owed MD a duty of care and breached this standard of care, resulting in his liability for her injuries.

When the matter came before the Court of Appeal, the Court noted that case law has established the existence of an analogous duty of care between a person who is authorized to use an ATV and another person who is permitted to operate the ATV. Thus, the Court agreed with the trial judge’s analysis in finding that PM owed MD a duty of care as he authorized her to drive the ATV back to his parents’ house despite knowing that MD had no experience and minimal, if any, instruction on how to operate the ATV.

The Court also acknowledged that PM failed to tell MD where to drive the ATV. Further, by following behind MD in the truck rather than leading the way, PM failed to exercise the care that a prudent and reasonable person would, when considering the likelihood of foreseeable harm to MD in the circumstances. In order to determine reasonable foreseeability, the Court considered “whether the plaintiff has ‘offer[ed] facts 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.”

Court of Appeal finds ATV owner and son liable for plaintiff’s injuries

Concerning GM’s liability under section 192(2) or the Highway Traffic Act, the Court noted that a liability assessment in this case was a matter of statutory interpretation. In this case, the Court concluded that the trial judge misinterpreted the applicable provision by failing to give it a wide interpretation. Referring to previous case law, the Court noted that this statutory provision is intended to protect the public through imposition of responsibility for careful vehicle management on the vehicle’s owner. Moreover, the Court found that the word “operation” intended to include the negligent transfer of care and control of a vehicle by the driver to another person. Accordingly, the Court concluded that GM assumed PM’s risk by entrusting his son to use the ATV, however, PM’s acts and omissions in allowing MD to operate the ATV constituted “negligence in the operation of a motor vehicle” within the meaning of Highway Traffic Act, making GM liable for MD’s “loss or damage”.

Regarding the claims against GM and CM, the Court found that neither party knew nor could have known that PM would allow MD to operate the ATV or that he would let her operate the ATV on the road. Thus, they did not breach the duty of care they owed to MD.

Key Takeaways for Owners and Operators of Recreational Vehicles

Owners of recreational vehicles, including ATVs, should be mindful of who they entrust with operation of such vehicles. Further, they should not allow others to use the vehicle especially if the other person does not have the requisite instruction and experience, or is otherwise incapable of, using the vehicle.

If you are injured as a result of a recreational vehicle accident, it is important to seek legal advice as soon as possible to ensure that your rights are preserved and your claim is commenced against the appropriate party or parties.

Contact Campbell Litigation in Waterloo for Legal Advice on Recreational Vehicle Accidents

The skilled personal injury team at Campbell Litigation regularly advise and represent clients who have sustained serious personal injuries resulting from slip and falls, car accidents and recreational vehicle accidents. We provide clients with an assessment of their circumstances and manage their personal injury claim from start to finish. Our team will advocate for you to ensure you are positioned to recover the maximum amount of compensation for your injuries, while you prioritize your recovery. To speak with a member of our team regarding your injury claim, contact us by phone at 519-886-1204 or reach out to us online.