Styrofoam fashioned motorcycle seat contributes to child’s injuries – NBCA finds parental negligence in motorcycle accident_.

Motion Decision: Edmondson v. Edmondson et.al., 2021 NBQB 53

NBCA: Edmondson et al. v. Edmondson et al., 2022 NBCA 4

The New Brunswick Court of Appeal recently ruled on a case involving a child who was seriously injured in a motorcycle collision involving a motor vehicle, as a result of negligence on the part of his father and the driver of the motor vehicle.

The claim against the other driver involved in the collision was a straightforward claim for failure to yield the right of way, however, the child’s claim against his father involved parental negligence stemming from the father’s decision to transport his young son on the back of his motorcycle using a makeshift passenger seat suctioned to the rear of the bike with suction cups.

The facts

In the summer of 2010, Cory Edmondson went for a ride on his Harley-Davidson motorcycle with his 5-year-old son, Cole. The motorcycle was designed for single occupancy, so Cory decided to create a makeshift seat for his son using styrofoam, leather, and suction cups to attach it to the rear of the motorcycle. This seat did not have a backrest and Cole’s legs could not reach the rear foot pegs. Cory then wrapped a belt around himself and his son to act as a seatbelt and equipped his son with an adult-sized helmet with no additional protective clothing.

Cory drove his motorcycle along a single lane highway on the outskirts of Fredericton, NB with Cole in the makeshift seat. He was driving 75 km/hr in a zone where the posted speed limit was 80 km/hr.

Doreen Phillips was driving in the opposite direction down the same highway. She entered the turning lane in anticipation of turning left onto her street, and inexplicably, without warning turned directly across the path of the motorcycle carrying Cory and Cole Edmondson. Cory did not have time to engage in evasive action and the bike hit the rear of Ms. Phillips’ car. Both Cory and Cole slid along the road, strapped together, and came to rest under a vehicle following behind Ms. Phillips. Ms. Phillips fell victim to the “invisible motorcycle” phenomenon, the common scenario where a driver fails to see a motorcycle on the road.

Both Cory and Cole sustained serious injuries in the accident, including a severe, nerve-damaging burn on Cole’s arm.

History of proceedings

Cole brought a summary judgment motion against both his father and Ms. Phillips on the issue of liability only. The motions judge allowed the summary judgment motion against Ms. Phillips, but not the boy’s father.

A summary judgment is a decision rendered by a court for one party against another party without requiring a full trial. It is done by way of a motion, which is a formal request to the court for an order.

Summary judgment in this context means that Cole was asking the court to decide that Cory and Ms. Phillips were both liable for Cole’s injuries resulting from the accident without the need to prove this at trial. The quantum of damages (assessment of the amount of money Cole ought to be awarded) remains an issue at trial.

Cory appealed the decision, arguing that the judge failed to correctly state and adjudicate Cory’s standard of care and erred in finding that Cole had to prove causation “per injury” to obtain summary judgment for liability in negligence. The judge found that without admissible evidence of the reason why Cory took Cole out on his motorcycle on the day of the accident, she could not make a determination concerning liability and therefore granting summary judgment against him was not an option. Further, the judge found that Cole had to show a causal link between Cory’s negligence, meaning his decision to put Cole on the bike, and each of Cole’s injuries, individually.

Decision

The Court of Appeal found that the motions judge made the correct determination that summary judgment for part of a claim could be granted without the consent of all the parties.

As for the substantive issues regarding standard of care and causation, the Court of Appeal found that a duty of care from parent to child exists, and Cory breached the standard of care in creating an unreasonable risk of harm through the blatant breach of a safety provision in the Motor Vehicle Act, prohibiting passengers on motorcycles equipped for only one rider. Further, causation was made out for Cole’s injuries in relation to Cory’s negligence, as Cory was a cause of the injuries.

In light of the breach of standard of care and finding of causation, the NBCA granted summary judgment against Cory for liability.

Reasoning

The standard of review is the amount of deference given by a court in reviewing a decision of a lower court. Here, the standard of review is correctness since the issues of standard of care and causation are both questions of law. This means that the Court of Appeal can overturn the motions judge’s decision if there was an error in how that judge applied the law.

The Court of Appeal dealt with both issues under the framework for parental negligence as follows:

1. Duty of care;
2. Standard of care;
3. Causation; and
4. Remoteness of damage or proximate cause.

Duty of care

While the court goes into more detail under this heading, it is sufficient to state that a duty of care is owed from a parent to a child. Further, a “parent is in a position of control over a vulnerable child and owes that child affirmative obligations.”

Standard of care

The standard of care can be influenced by a statutory obligation. Further, the Supreme Court of Canada held in The Queen (Can.) v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC), that a breach of a statutory provision is prima facie evidence of negligence. This is the case for the safety-focused s. 199(1) of the Motor Vehicle Act, which states:

A person operating a motorcycle shall ride only upon the permanent and regular seat attached thereto, and such driver shall not carry any other person nor shall any other person ride on a motorcycle unless such motorcycle is designed to carry more than one person, in which event a passenger may ride up on the permanent and regular passenger seat or in a side-car.

This provision recognizes that riding on a motorcycle is inherently riskier than being an occupant in a motor vehicle. This risk is rooted in the fact that motorcycles have no seatbelts or airbags, riders are not enclosed within a metal frame, and they are less stable during emergency breaking and crash avoidance measures.

In short, the Court of Appeal found that Cory blatantly breached s.199(1) of the Motor Vehicle Act in “rigging a makeshift seat to the rear fender of his bike with suction cups for Cole to sit on”, and in doing so, he breached the standard of care.

In order for the breach to amount to negligence, Cory’s conduct must have created an unreasonable risk of harm. This includes two key components; (a) the risk of harm, and (b) the severity of the potential harm.

The risk of harm must be “real or substantial” and the test is whether a reasonable person standing in the actor’s position, would find the risk so minor that it was acceptable not to take any steps towards preventing the danger. For the severity of the harm, the precautions taken must be commensurate with the danger. So, even where the risk is low, “if the potential loss is great, creating even a small risk could result in liability.”

Here, a reasonable person would have foreseen the risk of harm to Cole under the present circumstances. Both the risk and severity of the harm were great. Riding on a motorcycle is more dangerous than riding in an automobile, especially on a highway on a makeshift rear passenger seat. There was no emergency or necessity for Cory to put Cole at risk in this way, and it would not have cost anything for Cory to eliminate the risk. He simply should not have placed Cole in this position.

Causation

At a minimum, the defendant’s conduct must cause some of the plaintiff’s loss in order to find liability for negligent conduct. The court engaged with the following questions to determine whether Cory’s negligence caused Cole’s injuries:

“1) Was Cory alive to the fact riding on a motorcycle is inherently riskier than being an occupant in an automobile for the reasons I discuss above? The only reasonable answer is yes.

2) Was Cory alive to the fact the sort of accident which occurred here was not a freak accident but one which is all too often commonplace given the known phenomenon of the “invisible motorcycle”? Applying the reasonable person standard, there can be no question he was well aware of this.

3) Was Cory alive to the fact that placing Cole on a makeshift seat, not properly dressing him, strapping him to his body before taking off and driving at speeds up to 75 kilometres per hour would place Cole at significant risk of injury in light of what he already knew with respect to items 1 and 2 above? Again, the only sensible answer must be yes. His negligence made a difference.”

Remoteness

The final component of the negligence analysis asks whether Cory should have foreseen that his actions would cause the extent of harm suffered by Cole. The standard here, again, is that of a reasonable person. The Court of Appeal found that “there is nothing farfetched about the types of injuries Cole sustained” and “[t]hey are precisely of the kind typically seen with victims of motorcycle accidents.”

On the basis of the above analysis, Cole was entitled to summary judgment against Cory for liability.

This case provides helpful guidance on the standard of care and causation in parental negligence, in addition to a thorough framework for negligence analysis. Ultimately, where a parent endangers the life of a child through their negligent parenting, liability will likely result.