Ziemer v. Wheeler, 2014 BCSC 2049 (CanLII)
Date: 2014-10-31
Facts
This case covered three related collisions on the Alaska Highway (Highway 97) between Dawson Creek and Fort St. John in British Columbia on February 21, 2011, which occurred in the following order:
- Mr. Harris Wheeler hit a moose while driving north in his 2003 Ford F350 truck.
- The body of the moose remained on the highway. Mr. Aron Walter, who was also driving north, collided with the moose and lost control of his vehicle, a 2004 Ford F350 truck.
- Mr. Walter then collided head-on with Mr. Raymond Ziemer who was driving south with his wife and baby in a 2003 Chevrolet Avalanche.
All three collisions occurred under dark conditions with no artificial lighting. Weather was not a factor in the collisions.
The collisions occurred on a two lane highway with a posted speed limit of 100 km/h. Excessive speed was not a factor in the collisions.
Mr. Wheeler’s truck was equipped with aftermarket lighting on the front above the bumper which came on automatically with the high beams. In addition, Mr. Wheeler’s truck had five yellow dome lights on the roof of the truck above the cab visible from the front and back of the truck. Mr. Wheeler’s truck was equipped with additional safety equipment which included flares.
Mr. Wheeler testified that after his initial collision with the moose, he came to a complete stop and put his hazard lights on. Mr. Wheeler testified that he took 5 to 10 minutes to check his vehicle for damage. Mr. Wheeler testified that he then drove a “couple of hundred yards at most” to look for a spot to turn around. Mr. Wheeler testified that he returned to the scene not more than five minutes after the initial collision and parked in line behind 4 to 6 southbound vehicles.
The three witnesses who arrived after the third collision did not see Mr. Wheeler in the area when they first arrived on scene. One of the witnesses did see Mr. Wheeler return to the scene towards the end of a 911 call that another witness made.
The judge ruled that Mr. Wheeler breached his duty to warn other motorists of the hazard posed by the moose carcass, and that this caused the Walter-Ziemer collision. The judge found Mr. Wheeler to be liable for his negligence in the Walter-Ziemer collision.
Defendant’s Human Factors Position
Dr. Jason Droll, a human factors expert who was the only expert witness to give evidence, testified at the trial on behalf of the defendant Mr. Walter. Dr. Droll analyzed the perception response time (“the time drivers require in order to respond to a visible hazard; and potential vehicle maneuvers for an attempted avoidance response such as a swerving or braking”) available to Mr. Wheeler and Mr. Walter to potentially avoid their collisions with the moose. Dr. Droll explained that a dark moose pelt against a dark asphalt would provide very little contrast between the hazard and the background. Dr. Droll stated that, because of the low contrast, drivers would not be able to detect the hazard until they were very close. Dr. Droll calculated using the Adrian Model that, under the collision conditions, young drivers would be able to detect the moose at a distance of 38.5 m away while older drivers at 31.5 m away. Dr. Droll stated that oncoming vehicle glare would further reduce the detection distance as would have been the case for Mr. Walter (due to Mr. Ziemer’s approaching headlights).
Dr. Droll opined that a 2 second perception response time would conservatively approximate the response time for a typical driver. Dr. Droll stated: “Many of the scientific measurements on driver detection of similar hazards show drivers often reach, or pass, the hazard before detection. Obviously, in these cases, the duration of the driver’s perception response time is moot: the collision would have already occurred”. Dr. Droll opined that at a traveling speed of 90 km/h and the conditions, “both Mr. Wheeler’s and Mr. Walter’s collision with the moose was a natural outcome of the inherent constraints of visibility, reaction time, and available vehicle response.”
Dr. Droll also addressed whether there could have been any actions Mr. Wheeler could have taken to lessen the likelihood of a subsequent collision. Dr. Droll identified the following actions that would have provided visibility aids for oncoming vehicles:
- Parking in the same lane as the moose carcass with flashing hazard lights.
- Parking on the shoulder with headlights pointed towards the moose and flashing hazard lights.
- Placing flares near the moose or around the parked vehicle.
- Waving a flashlight directly towards oncoming vehicles.
- Flashing headlights on and off, or from low to high beam as vehicles approach.
Dr. Droll opined: “If Mr. Wheeler had positioned his vehicle either in the northbound lane or on the shoulder, turned off his flashing hazard lights, he could have flashed his headlights on and off or from low to high beam as approaching vehicles came near. This would alert drivers to pay attention, and distinguish the incident conditions from those of a stopped vehicle which is disabled with no other nearby hazards.”
Judge’s Rational
The judge found Dr. Droll’s evidence to be persuasive. The judge relied upon Dr. Droll’s evidence to find that Mr. Wheeler and Mr. Walter were not negligent for their collisions with the moose. In addition, the judge relied upon Dr. Droll’s evidence that both Mr. Ziemer and Mr. Walter were not negligent for their collision.
While Mr. Wheeler stated that the subsequent collision occurred before he had an opportunity to warn, the judge ruled otherwise. Based upon the witness statements, the judge concluded that a minimum of 21 minutes had passed from when Mr. Wheeler had hit the moose until he returned to the collision scene. The judge found that Mr. Wheeler must have drove further north than the distance he had described. The judge also concluded that a minimum of 9 minutes had passed between Mr. Wheeler’s initial collision with the moose and the Walter-Ziemer collision.
The judge stated that it was neither prudent nor necessary for Mr. Wheeler to check his vehicle before fulfilling his duty to other motorists to warn about the moose. The judge stated that even if it was accepted that in the agony of the collision, Mr. Wheeler had made an erroneous decision to attend to his vehicle before fulfilling his duty to other motorists, the judge felt that Mr. Wheeler’s second decision to drive away rather than take steps to warn led directly to the subsequent collisions. The judge ruled that turning around was not necessary, particularly since Mr. Wheeler had flares and an “extraordinarily well-lit truck”, and that Mr. Wheeler could have backed his vehicle up on the shoulder. The judge did not find that it was necessary to go further north in order to find a place to turn around.
The judge agreed with Dr. Droll’s evidence that reasonable drivers could be assisted by roadside warnings. The judge ruled that there were actions Mr. Wheeler could have taken to warn other motorists of the hazard. The judge concluded that for but for Mr. Wheeler’s failure to warn other motorists, the Walter-Ziemer collision would not have occurred or would have been likely to result in significantly decreased injury.
