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(This is a fictionalized question to help me understand an element of liability I stumbled across recently. My parents are not infirm and do not live with me)

I am well past the age of majority. One of my parents has diminished mental capacity and lives with me on a large property I own. My parent does not drive and there hazards to vehicles on the property.

I sell a large widget which requires to be picked up on the internet. Prior to arrival I advise the purchaser of the existence of hazards (say muddy ground which will cause the vehicle to get stuck) and instruct the seller to park at a location free of hazards so I can assist them in navigating the hazards and picking up the widget.

On arrival the buyer comes across my parent (who identifies themselves as being my parent). The buyer does not have reason to believe my parent is infirm. My parent then instructs them to the widget stating that they do not need to worry about the hazard.

The vehicle get stuck in the hazard, and because of its location it is expensive to get back on the road. The vehicle is not insured against this kind of loss/damage. Who is liable for the costs associated with recovering the vehicle?

FWIW, I am in New Zealand, but I'm interested in the general principles here, including those that apply to other countries.

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    This is an interesting question. I see several possibilities, but I am not sure enough of any of them to put them into an answer. I suspect the correct answer would vary depending on the specific jurisdiction. It might also depend on just how mentally infirm the parent was, and how obvious a reasonable person would find the hazard, given that they had notice that a hazard existed. It may be that the property owner should have warned the purchaser of the presence of the parent, and of the parent's condition. – David Siegel Dec 5 '18 at 0:49
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    This reminds me of the stories about people following GPS directions into a lake... There needs to be some reasonable suspicion that a person who operates a car can operate one safely and within its operating environment. I'm not sure it would be your fault if somebody can't see a deep mud hole or other hazard. – Ron Beyer Dec 5 '18 at 0:57
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    While not directly on point, the parallels are relevant and interesting. – davidgo Dec 5 '18 at 1:00
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There’s a lot going on in this question.

  1. Insurance doesn’t matter for liability. An insurer indemnifies the insured for damage they cause to other people (third-party personal insurance), other people’s stuff (third-party property insurance) or the insured’s stuff (comprehensive or first-party insurance) [the insurer is the second party]. If someone other than the insured is liable then the insurer can sue that person for recovery on behalf of the insured, just like the insured could do if they didn’t have insurance.
  2. The owner of the vehicle is the one who suffers the loss so, barring any other liability, they bear the cost.
  3. Much of the following depends on the tort of negligence. An important point is the standard of discharging a duty is that which a reasonable person would do. The fact that the actual person may be under some sort of impairment (as your parent) is irrelevant unless it is brought to the attention of the injured party such that it becomes unreasonable for the injured party to rely on the tortfeasor.
  4. The driver is liable to the owner if they were negligent. If they are an employee of the owner, employment law generally requires their conduct to go beyond negligence into recklessness or wilfulness before holding them liable.
  5. If the hazard is natural, the property owner is not generally responsible. However, if they have a legal duty to mitigate natural hazards (as the owners of public roads generally do) then they may be liable if they were negligent in performing that duty. By advising of the hazard and making the arrangements you did, you are probably not negligent.
  6. A person who gives directions to a driver may be liable if those directions were negligent. From your example, if the driver specifically asked about the hazard and if the tortfeasor did not have a reasonable belief that it was (i.e. they didn’t actually know), stating it was safe is probably negligent.
  7. Negligence is subject to the partial defence of contributory negligence which means that the liability of the tortfeasor is reduced by the proportion that the victim contributed to the event.

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