The accident was allegedly caused by a missing luminaire
A third-party claim in a traffic accident case involving a missing luminaire in the town of Milton is heading to trial after the Ontario Court of Appeal found errors in the summary judgment.
In Case v. Pattison, 2023 ONCA 529, a car hit Christopher Case as he walked across the road, resulting in a catastrophic injury. He claimed damages against the town of Milton based on allegedly inadequate street lighting because of a missing luminaire. Milton then commenced a third-party claim against Milton Hydro for contribution and indemnity, alleging that Milton Hydro negligently removed the luminaire.
Milton Hydro and the town brought competing motions for summary judgment. The motion judge ultimately ruled that Milton Hydro did not owe an ongoing duty of care to the plaintiffs or the town concerning the adequacy or operation of street lighting and that the responsibility was solely that of the town.
The motion judge said the town had “several opportunities” to “discover the missing luminaire and remediate the issue.” Accordingly, the judge concluded that the failure of the town’s inspections to note the luminaire was missing or that the roadway in that location was darker than usual is an intervening act that broke any chain of causation that may have existed to establish any liability on Milton Hydro.
The town elevated the case to the Ontario Court of Appeal, which noted that a successful negligence claim requires proof of a duty of care, breach of the standard of care, compensable damage, and causation. The court further noted that the appeal concerns the motion judge’s treatment of the duty of care and causation elements of the negligence analysis.
Errors in the motion judge’s decision
The appeal court found that the motion judge failed to conduct the requisite legal analysis. The court held that the motion judge conflated the duty of care analysis with the legal causation analysis. Her reasons indicate that she focused on causation and the “break” in the chain of responsibility for removing the luminaire and its effect on street lighting. The court said that was appropriate but should have been considered after she had adequately assessed whether Milton Hydro owed a duty of care to the plaintiff pedestrian.
In finding that Milton Hydro did not owe a prima facie duty to the plaintiff, the court found that the motion judge failed to ask whether the alleged duty was novel. Furthermore, the court said that the judge did not correctly consider the questions of foreseeability and proximity. Instead, she appeared to consider the questions of foreseeability and proximity in the duty of care analysis from the causation perspective of foreseeability and remoteness.
Additionally, the motion judge did not consider or determine whether Milton Hydro’s assumed action of removing the luminaire was negligent, independent of any duty of care owed by the Town of Milton to the plaintiff pedestrian. Instead, the court found that the judge assumed that the town of Milton’s actions were the sole cause of any harm alleged by the plaintiff pedestrian simply because it was responsible for inspections over the intervening four-year period. Further, the court held that it was an error for the judge to assume the town’s alleged statutory duties necessarily meant that Milton Hydro could not also owe a common law duty of care arising from its assumed action.
The court further held that even if the town were negligent in failing to inspect the street lighting, the town’s alleged negligence would not automatically or necessarily negate the reasonable foreseeability of harm arising from Milton’s removal of the luminaire. The court emphasized that the motion judge should have considered whether both could be responsible for the damage caused to the plaintiff pedestrian.
The motion judge also noted that the injury occurred four years after removing the luminaire. However, the appeal court said that the passage of time alone does not necessarily determine foreseeability or proximity under the duty of care analysis or the causation and intervening act analysis.
The court ultimately decided to set aside the motion judge’s decision. It remitted the matter for trial on the issues of duty of care, causation, and determination of which party removed the luminaire.