2005 BCSC 126 Grifone v. Moline and Moline

Before: The Honourable Madam Justice Humphries

Reasons for Judgment

Counsel for the plaintiff	D. Simpkin
The defendants L. Moline and F. Moline	On their own behalf
Date and Place of Trial:	January 10, 11 & 12, 2005
	Nelson, B.C.

[1] On November 19, 1999, at approximately 7:00 p.m., Ms. Grifone was driving north to Kelowna on Highway 33 with her 11 year old daughter. She was a kilometre or two past Beaverdell, B.C. Her daughter had just asked how far it was to Kelowna, and had reclined her seat. Ms. Grifone suddenly encountered a large animal standing broadside on the road directly in her path of travel. Ms. Grifone was driving at about 80 km/hour and did not apply her brakes or swerve. She drove straight into the animal.

[2] Ms. Grifone was familiar with the road, having driven it often. She said she had seen no signs warning her of animals on the road, and although she had seen deer on that road, she had never seen cattle before.

[3] Ms. Grifone described the animal she hit as a large black/brown bull or steer. She has taken a hunter trainer’s course in the identification of wild life, and her husband was a taxidermist. She said she can identify deer and moose. She was asked to estimate the animal's size and guessed it to be 2000-3000 pounds. In cross-examination it appeared that Ms. Grifone mistakenly thought the word “steer” was a generic word for a bovine animal.

[4] Ms. Grifone was dazed by the collision, and when she got out of the car after several moments, there was no animal to be seen. Her car was still in the northbound lane. It was severely damaged and could not be driven. Ms. Grifone did not search the area, being concerned for her daughter and wishing to get her out of the car, which was smoking, as soon as possible. She could not open the passenger door and assisted her daughter out through the driver's door.

[5] A passer-by took Ms. Grifone and her daughter into Beaverdell to the First Aid Post. The First Aid attendant, Coral Babette (phonetic), drove Ms. Grifone back to her car to get her belongings. On the way there, about half a kilometre south of the accident scene, the attendant pointed out a bull on the side of the road and shone her headlights and a floodlight on it. Ms. Grifone thought she saw redness on the bull’s shoulder, and possibly a red tag in its ear. She said the animal was dark brown/black.

[6] The attendant made several remarks to Ms. Grifone about the ownership of the bull and its suspected involvement in Ms. Grifone’s accident.

[7] The two drove on to Ms. Grifone’s car. As they were unloading it, a large truck passed them, southbound. Ms. Grifone heard the sound of brakes and a crash. The ambulance attendant drove back down the highway towards the sound of the crash; Ms. Grifone walked. The truck was stopped on the highway. Ms. Grifone said she saw the grill of the truck was damaged and noticed a black/brown bull on the side of the road on its haunches, still alive. By this time, it was about 8:00 or 8:15 p.m.

[8] Ms. Grifone and the attendant went back to Beaverdell and waited for the ambulance to Kelowna. Ms. Grifone and her daughter were taken to the Kelowna hospital. The only claim before me is for non-pecuniary damages for Ms. Grifone. The defendants do not dispute that she suffered soft tissue injuries.

[9] Mr. Moline testified that in early November of 1999, he had counted his cattle, and noted that seven of his eight bulls had returned to the home ranch for the winter. The eighth was missing. Mr. Moline testified that he was called to the site of the truck accident and identified the bull as one of his – a small Red Angus bull, one and a half years old, reddish brown with a lighter back, with a white tag required by his grazing licence. The bull had a broken hind leg, but no other sign of injury, as far as Mr. Moline could see.

[10] Mr. Moline testified that he had to put the bull down because of the broken hind leg, as bulls require strong hind quarters. Mr. Moline recovered about 350 pounds of meat from the animal. He estimates the animal's weight as under 1000 pounds, probably about 800 pounds. Thereafter, all his bulls were accounted for.

[11] Mr. Moline was not made aware of Ms. Grifone's accident or any possible involvement of his bull in any other incident that night. He learned of it about nine months later when he was sued. When Mr. Moline became aware of an alleged connection between his bull and an accident involving Ms. Grifone he went out to the scene to investigate and found the remains of two animals in the ditch in the same approximate area where Ms. Grifone had hit the animal – one was bovine and one was a moose. He could not say how long they had been there.

[12] Mr. Moline said the highway is well signed with "Watch For Livestock" signs, and presented a series of pictures of the signs which he and his son had taken some time after the accident.

[13] The only witnesses called were Ms. Grifone and Mr. Moline. There is no other evidence on the issue of whether Ms. Grifone hit a bull belonging to Mr. Moline. I do not know whether ICBC or the RCMP became involved in this incident, but there appears to have been no investigation. There were no pictures, reports or documentation put before the court.

[14] Counsel for the plaintiff says the only evidence is that of Ms. Grifone and it must be accepted: she says she hit a bull. The proximity of time and place of the truck incident to the Grifone accident scene (half a kilometre away, an hour later) gives rise to the conclusion that Ms. Grifone must have hit the same bull. The defendant had a duty to keep his livestock off the highway and is therefore liable for Ms. Grifone's injuries.

[15] Mr. Moline contends that an animal hit broadside by a car at 80 kph would not be wandering around on the highway an hour later. It must have been thrown and killed or at least severely injured. He bases this on his many years of experience in ranching and as highways superviser, as well as common sense. There was no search done of the area; there was no investigation of the accident. There is no evidence to support her theory, and Mr. Moline suggests the plaintiff now believes she hit his bull because of remarks made later by the first aid attendant, who was not called as a witness. The description of the animal Ms. Grifone says she hit does not match his bull. He did not detect any injuries to his bull other than the broken leg from the impact with the truck.

[16] There are other issues in this case, if I should find that the animal struck by Ms. Grifone was the bull belonging to Mr. Moline. The land on either side of the Grifone accident site is Crown land. Mr. Moline held a grazing permit for the land on one side of the highway. Issues arise as to the responsibility for an animal roaming at large on a highway adjacent to Crown range where the capacity to fence lies only with the Crown, and as to the relationship of the Livestock Act to animals on Crown range.

[17] As well, there is the issue of how Ms. Grifone would drive straight into a large animal standing broadside in her path without braking or swerving. In other words, even if Mr. Moline had breached a duty of care by allowing his bull to be on the highway, Ms. Grifone's degree of contributory negligence would be substantial.

[18] This last question is also relevant to Ms. Grifone's opportunity to see the animal she hit. She did not testify to any darting or movement of the animal into her path; there was no evidence of weather considerations affecting her vision. It was dark, but she had her high beam headlights on. If she had actually seen the animal in advance, she would have had some opportunity to swerve or brake. However, she drove straight into it, as it stood there broadside. She may have been distracted by her daughter who was settling down to sleep beside her, but in any event, she could not have been keeping a proper lookout at the road ahead. This suggests that she saw nothing other than a large dark animal in her path of travel, which is the evidence she gave on discovery.

[19] I do not accept that the plaintiff had an opportunity to identify the animal she hit, other that seeing that it was large and dark and was standing broadside in the road. Her description of the animal she hit does not accord with that of the bull belonging to Mr. Moline in any event.

[20] The only other evidence to support the plaintiff's position, aside from the inference to be drawn from time and place, is her impression that she may have seen some redness on the bull's shoulder when she and the attendant passed it on the way back to the car and shone a search light on it. She was not certain of this, and given the uncontradicted evidence that Mr. Moline's bull is reddish brown, not brown/black, and wears a white tag, not a red one, her capacity to observe and recall are in doubt.

[21] Taking into consideration the traumatic experience she had just been through with her young daughter, this is not surprising. She candidly admitted on the stand that she was not concerned with the bull on the side of the road; she just wanted to gather her things and get back to her daughter.

[22] Against this evidence is that of Mr. Moline's, that he found no other injury to his bull, other than the broken leg.

[23] As for the proximity of time and place, this is not outweighed by the unanswered question raised by the defendant: would an 800-1000 pound animal hit broadside by a car at 80 kph be wandering down the road a half a kilometre away an hour later? Without some evidentiary basis, I am not prepared to conclude that this is probable. Also of some relevance is the evidence of other animal carcasses/skeletons in the ditch in the same approximate area as the collision.

[24] On a consideration of all the evidence, I am unable to find that the plaintiff has discharged the burden of proving that the animal she hit was a bull belonging to Mr. Moline.

[25] Mr. Moline filed a counterclaim for the mental stress caused by being sued, and for the cost of the bull, if indeed Ms. Grifone were found to have hit it. As her case and his depended on her not having killed the bull, and as it is not in dispute that the animal was put down because of the injury inflicted by the truck, it is difficult to see how that claim would follow. As for the mental distress claim, Mr. Moline quite frankly admitted he filed it hoping it would force Ms. Grifone to resolve this dispute quickly. A law suit always brings stress with it. There is no suggestion of improper conduct or bad faith in this matter. The claim for damages arising from the fact of the action being filed is dismissed.

[26] In the result, the claim and counterclaim are each dismissed.

[27] Success has therefore been divided. Unless there is some issue respecting costs of which I presently unaware, the parties will bear their own costs.

“M.A. Humphries, J.”
The Honourable Madam Justice M.A. Humphries