Insurance

Car dealerships' duty of care up in the air

By AdvocateDaily.com Staff

Car dealerships should step up their safety precautions while courts continue to consider their duty of care to other road users, says Toronto insurance defence lawyer Heather Vaughan.

In a recent case, a B.C. Supreme Court judge found a dealership partly liable for damages caused during a police chase following the theft of one of its vehicles.

The Supreme Court of Canada has also heard arguments in a case in which a teen successfully sued the garage where he and a friend stole a car after suffering serious injuries when they crashed the vehicle. The top court's decision is currently under reserve.

“It’s an interesting and live legal issue at the moment. At this point for commercial dealerships there is no blanket duty of care to other users of the roadway,” Vaughan, a partner with Benson Percival Brown LLP, tells AdvocateDaily.com. “Until there is a decision that says they are in an established category of relationship that gives rise to the duty of care to other users of the roadway, the outcome of cases will be very dependent on their facts.

“In the meantime, dealerships should review their policies and procedures concerning safety and security, so that even if a duty is found to other road users, they can show they met the standard of care,” she adds.

The B.C. case had its roots in a 2012 incident when a pickup truck was stolen from a Vancouver dealership. The decision says the unlocked vehicle was left running with the keys in the ignition for 40 minutes before the thief jumped in and escaped.

Police were able to find the vehicle using its GPS tracking system, but the man avoided arrest by backing into a cruiser and driving off again.

The dealership was named as a defendant in three lawsuits; one brought by an injured police officer, another by a civilian driver hit by the truck, and one launched by the Attorney General of Canada, which owns the RCMP vehicles damaged in the collisions.

Justice Stephen Kelleher concluded in his ruling that the dealership had a duty of care to all three plaintiffs and that it had breached that duty due to its “careless” actions.

“In these circumstances, it was reasonably foreseeable that persons and property may be injured or damaged during the recovery of a vehicle by the police in the immediate aftermath of a theft,” he wrote.

Although the bulk of the blame lay with the thief, who was also convicted of several driving offences in relation to the incident, the judge apportioned 15 per cent of the liability to the dealership in each of the three cases, noting that its “negligence created the situation that was highly tempting to any opportunistic would be thief.”

Vaughan says she wasn’t surprised to see a duty of care found in the case but the courts will not always come to the same conclusion.

“Cases have gone both ways, and they are always very fact-driven. In general, the closer in time something happens to the actual theft, the greater the chance that a duty of care will be found,” she explains. "The idea is that it’s more likely to be causally connected to the theft when someone is agitated or anxious while fleeing a scene.”

She says the pending Supreme Court case differs significantly from the B.C. one because the plaintiff was involved in the vehicle theft. The dealership in that case is represented by one of her legal partners at Benson Percival.

The teens involved in the 2006 crash had been drinking and smoking cannabis when they stole the unlocked car, using keys that had been left in its ashtray. The plaintiff suffered catastrophic brain injuries as a passenger when his friend crashed the vehicle.

In a decision subsequently upheld by the province’s appeal court, a Superior Court judge found the garage owed the teen a duty of care before a jury found the dealership negligent and assigned its owner 37 per cent of the liability.

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