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Is a Moose on the Loose an “Act of God”?

Drivers in rural areas of this Province are well aware of the dangers imposed by moose on the highway. There have been a number of cases exploring liability issues when a driver causes an accident either by hitting a moose or attempting to evade a moose. There are generally two issues:

(1)   Was the driver taking sufficient precautions?

(2)   Was the moose “there to be seen”?

Some of the precautions suggested by the courts include:

(1)   reducing speed (particularly when visibility is reduced and driving at the posted speed limit would result in overdriving the vehicle’s headlights); and

(2)   using high-beam headlights.

However, the precautions are only necessary where there is reason to believe that moose are more prevalent than normal. The court will ask, for example, whether the area had “moose crossing” signs or whether moose were common in the area, such as in 399931 B.C. Ltd. v. MacPherson, 1995 CanLII 2341 (B.C.S.C.), where the defendant was found liable for driving too fast on a stretch of road known as “moose alley”.

Regarding the second issue, whether the moose was “there to be seen”, the courts generally distinguish between a moose standing in or beside the highway and one that jumps out unexpectedly. In the former situation, the driver is likely to be held liable. However, this is not always the case. In Pitts Enterprises Ltd. v. Farkes, 2004 BCSC 1493, the judge noted that “the moose was dark, almost black with non-reflective eyes.” The defendant was found not liable for an accident that resulted when he hit the unreflective ungulate.

For situations where the moose jumps into the road unexpectedly, the leading case is a Manitoba Court of Appeal decision, Maksymetz v. Plamondon, [1988] 5 W.W.R. 281, where a majority of the Court concluded that: “The action of the moose was the sole cause of the accident and could be termed an act of God.”

(written by Troy McLelan)

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