Library:
Running on Empty
Published in the April 2007 issue of Litigation Notes - View Article
The Supreme Court of British Columbia recently decided a case which serves as a cautionary tale about the perils associated with the frenetic pace of our modern world.
Michele Tucker was driving her children to school when the “low fuel” warning lit up on the dashboard of her truck. If she were to stop for gas, her children would be late for school, so she called her husband on her cell phone and he told her that she could probably wait until after the children had been taken to school before filling up. She dropped off her school age children and proceeded on her way with her youngest daughter, only to run out of gas and stall her truck in the middle of an intersection. Wayne Smith happened to be in his taxi at the intersection and he happened to be acquainted with Ms. Tucker. He jumped out of his taxi and proceeded to push Ms. Tucker’s truck out of the intersection. In doing so, he snapped a tendon in his leg and suffered a permanent partial disability.
Mr. Smith sued Ms. Tucker on the basis that she had been negligent in allowing herself to run out of gas and that he was entitled to recover damages sustained in the course of “rescuing” her. On the first point, the Court agreed with Mr. Smith. Ms. Tucker had ample warning that her truck was low on fuel and passed two filling stations in order to avoid making her children late for school. Having taken that risk, she should bear the consequences.
The Court then went on to review the law relating to liability to rescuers. It used to be that the courts would not award damages to rescuers, either on the basis that their assistance was an intervening act which broke the chain of causation , or on the basis that they voluntarily assumed the risk. However courts “…began to recognize that the response to an emergency situation was not truly voluntary, but rather was brought about by the exigencies of the circumstances and the call of moral duty”.
However, for a rescuer to recover damages, the intervention must take place in a situation of imminent danger, which did not exist in this case: “ In this case, the interest to be protected was really the convenience of other motorists. The truck, while posing an obstacle to the free flow of traffic, was not endangering other users of the road. There was no risk of physical injury to the defendant, or her daughter, and any risk to them could have been eliminated by having them move away from the vehicle... Although rescue cases will involve various levels of danger, I have concluded that, the case at bar, falls on the side of the line where the minimal risks to the victims of the defendant’s negligence do not warrant providing a remedy to the plaintiff.”
The action was dismissed, but it is probably safe to bet that Michele Tucker won’t run out of gas again.
Smith v. Tucker, 2007 BCSC 489