Update on Parental Negligence and Liability in Personal Injury Cases Involving Children

May 10 2022

In an earlier blog post CAM LLP canvassed what happens when a child is injured while a passenger in a vehicle driven by a family member. A recent decision from the New Brunswick Court of Appeal, Edmondson v. Edmondson, 2022 NBCA 4, granted summary judgment to the legal representatives of a five-year-old child against his father for injuries suffered while a passenger on the father’s motorcycle, and found the father liable squarely on the basis of his parental negligence.

The case highlights the high degree of care that a parent must take while transporting their child, should the worst happen and they are in a motor vehicle accident.

The legal principles set out in the case are also not limited to New Brunswick and could apply to parents in Alberta and most other provinces of Canada.

In Edmondson, Cory decided to take his five-year-old son Cole for a ride on his motorcycle. The motorcycle was not designed to carry a passenger, but Cory rigged up a home-made seat out of Styrofoam, which he wrapped in leather, and attached to the back fender of the motorcycle with suction cups. Cole could not reach the rear foot pegs so Cory strapped Cole to himself with a leather strap. Although Cole had protective clothing and a child sized helmet available to him, Cory placed Cole on the motorcycle dressed in plain street clothes and wearing an adult helmet, which was much too big.

Shortly after they began travelling on a nearby road at 75 kilometers per hour, the defendant driver made a left turn in front of Cory and Cole. Apparently, she did not see the motorcycle. Cory forcefully applied the brakes, went into a skid, struck the vehicle and continued sliding under a SUV vehicle stopped behind. Cole was severely burnt by the hot exhaust components of the vehicle as he slid underneath, and also suffered fractures. Cory and Cole remained strapped to each other throughout, and the rescue workers had to cut them free.

The legal representatives for Cole sued both the estate of the driver (who had died of unrelated causes after the accident) and Cory in a motion for summary judgment. The motions judge denied summary judgment against Cory on the basis that there may have been a necessity or emergent factors which would have caused Cory to transport his son on the motorcycle this way. This was overturned by the New Brunswick Court of Appeal as mere speculation, and thus an error of law, and summary judgment was granted against Cory for parental negligence.

Parental duty of care

The appeal court made clear that Cory owed Cole a duty of care. As parent, Cory was in a position of control over his vulnerable child. Cory had breached this standard of care by his conduct which placed Cole at an unreasonable risk of harm. Further, the court found that placing his son on a motorcycle that was not equipped to carry more than one person was blatant negligence on Cory’s part. He simply should not have placed Cole on the motorcycle in a makeshift seat and certainly should not have strapped the two of them together. Even though the driver was the primary cause of Cole’s injuries, Cory was a cause as well, and therefore liable for Cole’s injuries.

Provincial safety provisions

In Edmondson, Cory was found to have violated many of the safety provisions in the New Brunswick legislation. These safety provisions are common in the legislation across Canada. In Alberta, for example, the Use of Highway and Rules of the Road Regulation, Alta Reg. 304/2022 s. 77 (1)(c), (d) prohibits the use of a motorcycle to carry more persons at one time than the number for which the motorcycle is designed and equipped, and motorcyclists must only ride on the “regular” seat.

Edmondson v. Edmondson serves as a cautionary tale about the potential liability of parents if their children are injured in motor vehicle accidents because of parental negligence. In fact, recent Alberta statistics indicate that there has been a 90% increase in fatalities in motorcycle accidents in Alberta in 2020, according to the Alberta Motorcycle Safety Society. Apart from fatalities, injuries from motorcycle accidents can be very severe, including traumatic brain injuries, fractured bones, and spinal injuries that can lead to paralysis.

Motorcycles are particularly susceptible to severe crashes as there is no protection for riders and they are less stable during emergency braking and crash avoidance manoeuvres. Motorcycles are also less visible than other vehicles, and the phenomenon of the “invisible motorcycle” is well known. In an earlier blog post we offered some suggestions to enhance motorcycle safety.

How CAM LLP can help

At CAM LLP, we are experienced handling cases where children have been injured in driving accidents. We understand the emotional toll these cases take and what needs to be done to ensure an injured child has access to every possible resource to help their recovery and fund the costs of future care.

Since 1962, our lawyers have been achieving precedent-setting results for injured Albertans. Years of experience evaluating claims, negotiating settlements with insurance companies, and helping injured people get fair compensation makes a difference. If you have questions or need help, contact us for a free consultation.