Part 3 of a 3-part blog series on ATV liability, based on a presentation by Robert Murphy at the 2024 County of Carleton Law Association Civil Litigation conference on November 15, 2024. Click to read Part 1 and Part 2.

 

Earlier this year, the Court of Appeal provided guidance with respect to the standard for ATV owners and those who control access to ATVs. 

 

In Desrochers v McGinnis, the Plaintiff, Megan, suffered a severe brain injury when the ATV she was riding left the roadway and struck a tree on July 29, 2014.  At the time of the accident, she was visiting the property of Grant and Catherine McGinnis (the parents of her boyfriend, Patrick McGinnis). 

 

Megan and Patrick had taken the ATV to pick up a truck down the road.  No one wore helmets.  Once they reached the truck, Patrick got off the ATV and drove the truck back.  Megan drove the ATV back.  On the way back, Megan drove along a public road called Young Road, and lost control of the ATV on a sharp corner.  She struck a tree and sustained serious injuries. 

 

Even though this was a single vehicle accident and Megan was driving, she successfully established fault against Patrick and Grant. 

 

The trial Judge concluded that Patrick’s conduct was negligent in letting Megan use the ATV because: 

 

1. 1. 1. 1. 1. 1. 1. 1. 1. Megan received minimal instruction from Patrick in the operation of the ATV, and she had only driven it in an open field under his direct supervision or when he was a passenger; 
                        2. Megan had little experience in turning the ATV and none with sharp turns; 
                        3. Megan had no familiarity with riding the ATV on the road in question, in particular driving an ATV alone on a roadway that did not have any artificial illumination when it would be semi-dark out; 
                        4. Patrick gave Megan no warning or caution about driving on the road in question or how to negotiate the sharp turn that existed on it; 
                        5. Patrick took no steps to drive in front of her, as he could have, to ensure that she either slowed down or stopped before arriving at the curve. An experienced ATV rider like Patrick would know the effort and level of skill that was necessary to successfully negotiate such a sharp curve; 
                        6. Patrick would have also known that the safe route for a person with Megan’s experience would have been through the his parents’ field, not on the road, but said nothing to her; 
                        7. Patrick could have driven Megan back in the truck and retrieved the ATV later; and 
                        8. Also relevant were Patrick’s relationship to Megan and his intimate knowledge of her mental health frailties: if he thought it was important to her safety and health to control her consumption of prescription medicine, he should have exhibited a similar level of concern with her driving a motorized vehicle alone, helmetless, on an unlit rural roadway, with an unmarked curve of more than 90 degrees, and with only limited experience in the operation of that vehicle. 

 

The trial judge further concluded that neither Grant’s nor Catherine’s conduct fell below the standard of care required because: 

1. There was no evidence that Grant or Catherine knew or should have known that Patrick would not operate the ATV safely with Megan; 
2. Grant understood that Megan had ridden the ATV while at the property and received instruction in its operation; 
3. Grant was not at home at the time of the collision and had no knowledge, before the accident, about Megan riding the ATV that night or about plans to do so; 
4. Catherine had driven the ATV with Megan as a passenger, observed Megan drive it without incident, and had given her some instruction in how to operate it. In her experience, Megan only drove the ATV around the property, not on the public road, and always at low speeds; 
5. Catherine assumed that Megan would be driving the ATV back to the house but there was no evidence that she knew or should have known that Megan would drive on the public road instead of across the fields; and 
6. Catherine told both Patrick and Megan to wear helmets. In the result, neither did. But the trial judge found that since Megan was an adult, not under the apparent influence of drugs or alcohol or otherwise incapacitated that evening and would be riding the ATV in the company of Catherine’s adult son, Catherine did not have a positive duty to prevent Megan from getting on the ATV, to compel her to wear a helmet, or to specifically instruct her not to drive back on the public road. 

 

These findings were all upheld on appeal. 

 

The Court’s analysis for Patrick’s breach of the standard on one hand, and his parents’ meeting the standard on the other, provides two useful measuring sticks for standard of care assessments in future ATV cases.  That said, the proper standard of care for ATV operation and ownership is ultimately a question of fact that depends on the circumstances of each case. 

 

VICARIOUS LIABILITY

Owners can be held responsible for the actions of drivers / operators under the ORVA or the Highway Traffic Act (“HTA”).  This is called vicarious liability. 

 

Given that the accident in Desrochers occurred on a public road, the HTA (and not the ORVA) applied.   

 

The Court of Appeal held Grant (the ATV’s owner) responsible for Patrick’s negligence in transferring the management of the ATV to Megan, a person whom he knew or should have known lacked the adequate training and experience to drive the ATV in the circumstances. 

 

At Bergeron|Clifford we represent injured victims of ATV accidents and their families.  If you or someone you love has been injured in an ATV accident, call us today. 

 

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ROBERT MURPHY

 

Rob attended law school at Queen’s University and graduated with his Juris Doctor in 2020.  He summered at and completed his articles with Weaver, Simmons LLP, a full-service firm in Northern Ontario.  During his articles Rob had the opportunity to see personal injury files from both the plaintiff side and the defence side.  After articles, Rob practiced injury law and general litigation with Kelly + Kelly Lawyers in Pembroke, until Kelly + Kelly’s civil litigation practice joined Bergeron Clifford in 2023.