What is the Duty of Care owed by Bailee of a Vehicle to Innocent Third Parties on the Road?
Does a garage owner owe a duty of care to a third party who comes onto the businesses private property, steals a vehicle and is injured in a subsequent motor vehicle accident? The Supreme Court of Canada has ruled that “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.”
In Rankin v (Rankin’s Garage & Sales) v JJ, the Plaintiff youth (JJ) and a friend (C) had been drinking and smoking cannabis when they left C’s mother’s home with the intention of stealing valuables from unlocked cars. The youths eventually made their way to the Defendant’s place of business, which was not secured. The youths found an unlocked vehicle with the keys in the ashtray and C decided to steal it in order to pick up a friend in another town. JJ went along for the ride and the boys were involved in a motor vehicle accident, with JJ suffering a catastrophic brain injury. The lawsuit was brought seeking damages against the garage under the suggestion that the garage owner owed a duty to properly secure the vehicles at his business.
At trial, it was held that the garage owner owed a duty of care to JJ. The jury found that all parties involved in the incident had been negligent and apportioned liability as follows: 37% to the garage, 30% to C’s mother, 23% to C and 10% to JJ.
At the Court of Appeal
The Ontario Court of Appeal upheld the ruling after performing an analysis under the Anns/Cooper test for establishing a duty of care. The Court of Appeal held that it was foreseeable that minors might take unlocked/unsecured vehicles for joyrides and that they may injure themselves during the said joyride. The Court of Appeal also found that under the second part of the test, there were no residual policy reasons to justify not recognizing the duty of care.
At the Supreme Court
The Supreme Court also performed an analysis under the Anns/Cooper test and found that it was not enough to simply determine whether the theft of the vehicle was reasonably foreseeable, but that the proper question to be asked was whether the type of harm suffered – personal injury – was reasonably foreseeable to someone in the garage owner’s position. The Supreme Court noted that in order to find a duty of care, there must be some circumstance or evidence to suggest that the garage owner ought to have reasonably foreseen the risk of injury.
The Supreme Court outlined that the courts below had relied upon the risk of theft by minors to connect the failure to secure the vehicles with the nature of the harm suffered (personal injury). However, the Supreme Court stated that the risk of theft in general does not automatically include the risk of theft by minors. Instead, some evidentiary basis is required before a court can conclude that the risk of theft includes the risk of theft by minors. In this case, there was insufficient evidence to suggest that minors would frequent the premises at night, or were likely to be involved in joyriding or theft.
The Supreme Court found that business will only owe a duty to someone who is injured following the theft of a vehicle when, in addition to the theft, the unsafe operation of the stolen vehicle was reasonably foreseeable. The fact that JJ was a minor did not automatically create an obligation for the business owner to act.
The Supreme Court went on to say that it was not necessary to consider whether the illegal conduct could sever the proximate relationship between the parties or negate a prima facie duty of care, but did note that the Supreme Court has consistently rejected this notion.
Moving forward this case signals that foreseeability for these types of situations will have to be decided on a case-by-case basis. If the Plaintiff is able to produce evidence to support a duty of care, it is likely to exist but the onus in most circumstances will now lie with the Plaintiff rather than being an automatic duty.