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Tag: Waters v. Mariash

No Negligence For Crash Following Tree Suddenly Falling on Roadway

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, following a summary trial addressing negligence for a collision which occurred after a tree suddenly fell onto a roadway.
In this week’s case (Waters v. Mariash) the Plaintiff was involved in a collision after a cottonwood tree “suddenly fell across the the highway, cutting off both lanes“.  The Plaintiff was in the curb lane and struck the tree.  The Defendant was driving in the inside lane a few car lengths behind the Plaintiff.  He hit his brakes, his vehicle fishtailed and hit the tree and the Plaintiff’s vehicle.  The Plaintiff argued the Defendant was negligent but the Court disagreed dismissing the claim against him.  In doing so Madam Justice Humphries provided the following reasons:
[7] The defendant said on discovery that he was about 100-150 feet away from the tree when he started to brake.  He said he had switched into the fast lane to avoid the merging traffic from 176th Street, and had been travelling about 100 kph in a zone posted at that speed.  He reduced his speed to about 90 – 95 kph when the downpour started.  He was travelling 8 – 10 car lengths behind the plaintiff’s Bronco.  When he saw the tree begin to fall, he put on his engine brake and downshifted, breaking and beginning to slide a little on the wet pavement.  His tires were brand new Michelins…

[15] The accident occurred on a heavily travelled freeway near between Vancouver and Surrey.  While there is always the possibility of obstructions on such a highway, such as an animal or a child dashing out, it would be a very remote possibility in such a location.

[16] The accident was not the result of an obstruction such as branches or debris that one might expect in a wind storm and that would be there to be seen if one were travelling at a reasonable speed.  This accident occurred because a tree fell suddenly in front of both vehicles, blocking both lanes.  Both vehicles hit the tree.

[17] This is not similar to a situation where a driver is travelling in the winter and is expected to cope with unexpected icy patches (according to the Court of Appeal in Redlack v. Vekved, supra, but perhaps not inHearn v. Rowland, supra).  There is no evidence from which an inference could be drawn that the defendant in this case was driving beyond his own competence or that of his vehicle.  He was travelling below the speed limit.  He was faced with an unexpected event that could not be anticipated and he reacted reasonably.  The other options suggested by the plaintiff are not reasonable in these exigent circumstances, and may have been even more dangerous.

[18] According to Hearn v. Rowland, the defendant does bear a heavier onus if he asserts a defence of inevitable accident, but not if he seeks to show, as in this case, that the accident happened without any negligence on his part.  The onus is therefore on the plaintiff to show that the accident occurred as a result of the defendant’s negligence.  I am not persuaded that he has done so.

[19] The action against the defendant Mariash is dismissed, with costs at Scale B.