November 10, 2014

SABS Update- This Decision is Worth Following But Think Twice Before Following a Vehicle into a Parking Garage

Kasman v. Security National Co., 2014 FSCO 4285, Arbitrator Jeffrey Rogers

MVC July 15, 2010: The Claimant, Kasman, was injured when the arm that regulates an underground parking garage struck him in the head. He was on his way to the garage to retrieve his parked car and he followed a car which triggered the arm to lift. The arm came down because the car Kasman was following continued into the garage and triggered the sensor that caused the arm to lower.

ANALYSIS

First, the Arbitrator concluded that this was an “accident” per s. 2 of the Schedule. He applied the “purpose test” to determine whether the incident arose out of the ordinary and well-known activities to which automobiles are put. There was no doubt a car entering the parking garage was engaged in an ordinary and well-known activity to which automobiles are put.

The contentious issue was whether the causation test was met. The arbitrator applied the Chrisholm v. Liberty Mutual decision which describes the “domino effect”. To meet the test, the automobile must knock over the first domino and the dominoes must continue to fall, without intervening action, until the injury occurs. Security National argued that the lowering of the arm was an independent act because the arm was operated by a mechanism separate from the car.

The Arbitrator rejected the jurisprudence where causation was not established in instances where:

  • the automobile becomes the location in which a criminal act takes place;
  • the claimant lodged her car on a rock and could not dislodge it. The car stalled. She choose not to seek shelter in her vehicle but walked through the night for 9-10 hours, fell into a river and lost her boots causing significant frost bite;
  • the claimant parked his vehicle, removed groceries from the trunk, closed the trunk and twisted his foot in a groove cut in the pavement during construction of the parking lot; and
  • the claimant fell on black ice in a parking lot after exiting a bus and taking several steps

The Arbitrator found that the entry of the car Kasman followed into the parking garage directly caused his injury. There was no act between the use or operation of the car and his injury. Although the arm was separate from the car, it was not independent of the car in the circumstances of this case.

APPLICATION

The Claimant established the direct connection between the lowering of the arm and the car he followed into the garage. The vehicle activated sensors that caused the arm to open and ultimately strike Kasman. Although distance from a vehicle has been a useful tool in the causation analysis, little weight ought to be given in circumstances where the automobile remotely triggers the mechanism of injury.
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