Deer by road - What can you legally do if your car hits an animal?

What can you legally do if your car hits an animal?

As we all know unfortunately cars and animals often collide. Sometimes those animals can be large including deer, moose, cows and horses. Believe it or not, I have been involved in claims where all four of those animals have been hit by a car.

The question is if I hit one of those animals and suffer personal injury, can I sue? The answer to that question is both yes and no, and will depend upon the individual facts or circumstances of your particular event.

Obviously, one cannot sue the animal itself because neither moose, nor deer, nor cows, nor horses carry insurance but there are others that you may be able to sue.

If you are driving and a deer is to come out of the woods and you hit it and sustain bodily injury, then no you cannot sue the deer. As indicated, the deer does not have any insurance nor obviously any assets to go after. The same can be said for hitting a moose.

If on the other hand you should hit a horse or a cow or another domestic animal, such as a dog, then the answer is yes, you can sue depending upon the facts.

I have been involved in a number of cases involving dogs. You can, in fact, sue the owner of the animal for not having the animal under control, fenced in or on leash, when the animal comes out onto the roadway causing you to strike it or to swerve and hit another object resulting in injury to yourself. You, of course, need to find out who owned the dog and hope that they have homeowner’s insurance as pets are covered under the homeowner’s insurance policy.

I have also been involved in cases where people have hit horses often resulting in very serious injuries and even fatalities. In one such case, my client, who was a passenger in a motor vehicle, was confronted by a horse who had escaped from its pen and being startled by the car reared up and came down with its hoofs onto the roof of the car caving in the roof and causing fatal injuries to my client, the passenger. The owner of that horse was sued successfully on the basis that he had not had the animal under control and had not properly penned the animal in. In another tragic case, my client riding a motorcycle hit a horse in the middle of the night, which was standing on a roadway, resulting in spinal cord injuries to my client. Again, we sued the owner, not of the horse in that case but the facility where the horse was being kept, for failing to ensure the horse was properly penned in.

The same also applies to cows or other farm animals which may get out and be on the roadway causing potential hazards to motorists.

So the answer is that in some cases you may very well be able to sue.

If you are a passenger in a car that hits a deer or a moose, then although you cannot sue the deer or moose, you may in fact be able to sue the driver of your car. Again, the question as to whether or not you will be successful will be fact-driven and will be based upon things such as the speed in which the vehicle was going at the time of impact, whether the driver was distracted from paying full attention to the roadway (texting becoming a very common distraction today), or whether they had their judgment impaired by alcohol, etc.

In situations in which you are the driver in a vehicle and hit that deer or moose or other wild animal and there is no one to sue, you still have a right to claim accident benefits because hitting a wild animal and suffering injury is still considered to be a motor vehicle accident and opens up your entitlement to accident benefits. As far as accident benefits are concerned, hitting an animal or swerving to miss an animal and hitting some other object resulting in injury to yourself is no different than hitting another motor vehicle as far as accident benefits are concerned.

Obviously, the best thing is never to hit an animal at all. Although one can never guarantee that they will not be confronted by some sort of an animal, whether wild or domestic, there are certain things that you can try to do to help prevent an injury or at least to help prevent that injury becoming worse than it might otherwise be.

Safety Tip #1

If the animal is smaller than your car, hit it. The natural reaction for most drivers is to want to avoid hitting an animal and we swerve our cars to the left or the right in order to do so. I have seen tragic results for people who have tried to swerve to miss squirrels and raccoons. Obviously hitting that animal would have not caused any bodily injury to the occupant but would likely have resulted in the death of the animal. Unfortunately in the cases that I was involved in, the individual swerved to save the animal’s life and in one case ended up hitting an oncoming car resulting in devastating bodily injuries, and the other going off the road and hitting a tree, again resulting in devastating bodily injuries.

I know we all feel bad if we hit an animal and kill it, but you have to think about what the consequences may be if you swerve to avoid the animal and lose control and go off the roadway or into oncoming traffic.
The best thing you can do in my opinion is to keep your car in your lane of the roadway, attempt to slow down as much as possible, understanding that slamming on your brakes, particularly in winter conditions, may cause you to lose control, and hit the animal if you have to. If slowing down allows the animal enough time to get out of the pathway of your car, then it is a win-win situation.

I recall very clearly when I was taking driver’s education, I won’t tell you how many years ago, of the story the instructor told me about the person who rolled their car and ended up paralysed because they had a bee inside the car and panicked. In hindsight, they obviously would have been much better with a bee string than with a broken neck, and having to sit in a wheelchair for the rest of their life. We do things impulsively and it takes a lot of concentration not to swerve to try and avoid hitting that animal.

When my kids were all learning to drive, I told them that it does not matter what animal may be in front of you, slow down if you can, but hit the animal rather than swerving to attempt to avoid hitting it.

Saving animals’ lives is something that I am sure we all want to do, but it should not be at the risk of your own life or the life of other people that may be in your car.

 

Safety Tip #2

Consider purchasing and installing a vehicle-mounted auditory deterrent, aka a deer whistle. These devices are readily available, are very inexpensive and easy to install. I have them on all of my kids’ cars, my wife’s car and my car, and they cost less than $10.00. Manufacturers suggest these devices create ultrasonic sound waves that are undetectable by humans but warn wildlife of approaching traffic. Auditory deterrents have mixed reviews, some saying they do not work but for $10.00 it is worth a try. I myself have witnessed deer moving away from the roadway as I approached and whether they were just smart they knew it was me coming or because the deer whistles work we will never know.

Animals Bigger than my Car

Obviously one of the last things you want to confront on a roadway is a moose. They are often very large and when hit by cars create extensive damage to the car, and often devastating injuries and fatalities. I am not an expert on moose but can tell you from some cases I have been involved in where people have hit a moose that the difficulty is that they have very skinny legs and massive upper bodies. The vehicles tend to break the legs of the moose and the carcass tends to come through the front of the car crushing the occupants. This is an animal that you want to try and avoid hitting. If there is no way to avoid the animal without putting yourself at risk of death or significant personal injury, then again slow down as much as possible and as you are about to strike the moose, duck, affording yourself the protection of the lower part of the car as opposed to having just the windshield and the frame around it between you and the moose.
In conclusion then, when you hit a wild animal or domestic animal and sustain serious personal injury, it is certainly worthwhile consulting an experienced personal injury lawyer to get advice as to what you may be able to do. Ask that lawyer whether they have been involved in cases where people have been injured as a result of hitting deer or moose or domesticated animal, such as dogs, cows, horses, etc. You may be able to sue and receive compensation for your injuries from someone or something, and you will always be entitled to claim accident benefits. The amount of those accident benefits will be determined by the type of injury and whether it is ultimately deemed to be a catastrophic or non-catastrophic injury. Under the current legislation those benefits are as set out below.

Effective June 1, 2016, the primary statutory accident benefits consist of the following:

  • Income Replacement Benefit – Up to 70% of your pre-accident gross income up to a maximum of $400 per week.
  • Minor Injury – $3500 for medical and rehabilitation benefits.
  • Non-Catastrophic Designation – $65,000 dollars available for medical/rehabilitation and attendant care benefits up to 5 years or until the age of 28 for a minor
  • Catastrophic Designation – 1 million dollars available for medical/rehabilitation and attendant care benefits over the course of a lifetime

You may also want to read the article that I wrote, Insurance Changes – How to Protect Yourself, about purchasing extended accident benefits to provide yourself with greater protection in the event you do sustain injury as a result of striking an animal.

From me and my team here at Lerners LLP, I wish you and your families safe winter driving and the best of the holiday season and a happy New Year.

Nigel Gilby

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