Question for the lawyers of BARF

[Lucky_Devil]

So I was reading about the verdict in the "Duck Lady" case in Montreal.

Basic Summary: a woman stops in the left lane of the highway, fails to turn on her hazard lights, and exits the vehicle to attempt to gather stray ducklings wandering in the middle of the highway when a motorcyclist and his passenger (16 yo daughter) slam into the back of her parked car and are killed.

My question is this: The accident occurred on a sunny evening, the motorcyclist was speeding, and they were both wearing "novelty" half helmets and no other gear.

This girl was found guilty of two counts of criminal negligence causing death and two counts of dangerous driving causing death, and rightfully so, but at what point does the justice system take into account the negligence of the rider which probably contributed to his, and his passengers death.

I know that there's no way we can say for sure that he or his daughter might have survived if they had not been speeding, or had been wearing gear and proper helmets... but are these facts considered at all? Perhaps in her sentencing and the severity of her punishment?

I'm sure adding "causing death" to any conviction increases the severity of punishment. But riding around with no helmet or novelty helmets would seem to ratchet up the chances of a incident resulting in death.

Just to be clear: I'M NOT DEFENDING THIS WOMAN

...just curious...

 

[russ69]

I'm no lawyer and you are talking about Canadian law but it's still about the assignment of negligence. In this case parking in a traffic lane can be assessed as the primary reason for the accident therefor the deaths. If you were to assign percentages, it would be 95%/5% IMHO.

 

[oldapeman]

There is a difference between her criminal conviction, which is what you mention above, and any tort based civil action seeking damages.

In her criminal case, the issues relate to whether society as a whole should subject her to criminal punishment, and to what degree she should be punished (i.e., probation, or imprisonment, and for how long). It is easy to say that her actions resulted in two deaths, and that she should have been aware that she was placing others in danger by her actions, and so should be punished by incarceration or probation. In considering her punishment, the court is generally permitted to consider all the facts and circumstances of the situation, including whether the chance of death or injury was increased by the actions of the deceased, but the amount of weight the court gives that is likely to be slight.

In the civil lawsuit that is almost certain to follow, the survivors (family of the deceased) are entitled to sue in civil court to seek damages for the negligent or willful misconduct of the driver. In that civil action, the concepts of "comparative fault" and "contributory negligence" will be argued in defense in order to reduce the amount of money in damages to be awarded to the plaintiffs. It becomes a question of the weight placed upon the relative wrongfulness of the opposing parties. In this case, I do not see the type of helmet being given much weight, but I do see the speeding (if excessive) being used to reduce the damages to the rider. That would not reduce the damages awarded to the mc passenger's survivors recoverable from the car driver.

The above is not based upon Canadian law (about which I know nothing), but rather general legal principals which vary greatly in the US from state to state. We spend many hours arguing these issues in law school and in our practices. It is one of the many things that makes the practice of law interesting. Every day is different, every case is a learning experience.

 

[Lucky_Devil]

Thank you for the thoughtful replies. Definitely answered my question :thumbup

I know nothing of the law except what I have gleaned from a handful of Judge Judy & Peoples Court episodes :laughing so I appreciate the education.

 

[Junkie]

From reading the article, here's what I see:

Speed limit was 90kph (56mph). The bike was moving at 113-129kph (70-80 mph) before the incident. He slowed to 105-121kph (65-75 mph) before impact. In other words, he was going ~20mph over the limit initially, and only slowed by 5mph before hitting the car. He barely reacted.

It also says that they were not wearing approved helmets. I don't know what the helmet standards are in Canada. However, it says that the helmets did not contribute to the deaths. I imagine that means there were enough injuries to other areas that they would have died anyway.

My main question is why the rider barely reacted. It could be that he wasn't paying attention. It also could be that he was close behind another vehicle (likely a large one) that swerved at the last second.

Tragic no matter what the cause.

 

[monkeythumpa]

There is a legal idea that you take your victim as you find them. It is derived from English Common Law so it should be consistent across our northern border. Someone who plays a practical joke on someone by scaring them and they die of a heart attack because they had a weak heart is culpable even if an average person would have survived the scare.

Poor gear may have played a factor in the severity of the injuries, but is not the cause of the accident.

Even though most motorcycles should have been able to stop, the court must decide whether the action of pulling over was an actus reas (guilty act) that caused the death. From what I have read about it, I still might have let the driver go and let it play out in civil court.

Not a lawyer but I watch a lot of Judge Judy.