Background and facts giving rise to the appeal
This action arises out of a motor vehicle accident that occurred on January 20, 2015, as the plaintiff was walking across a road in the Town of Milton and was struck by a vehicle.[1] As a result of the subject accident, the plaintiff and his wife brought a claim against the driver of the vehicle and the Town of Milton based on allegedly inadequate lighting due to a missing luminaire (i.e., street light). The Town of Milton commenced a third-party claim against Milton-Hydro for contribution and indemnity alleging that Milton Hydro negligently removed the luminaire from the subject location.[2] Milton Hydro and the Town of Milton brought competing motions for summary judgment.
Motions decision
The motion judge was unable to determine who was responsible for the removal of the luminaire based on the evidence before her, however, for the purpose of deciding the motions, she was prepared to assume that Milton Hydro removed the luminaire. With that assumption in mind, the motion judge held that Milton Hydro did not owe a duty of care to the plaintiffs or to the Town of Milton, as more than 4 years had passed since the removal of the luminaire, and the Town of Milton failed to identify and remediate the issue during their annual inspections of the location. This, according to the motion judge, broke the chain of causation that may have established liability against Milton Hydro.[3] As a result, the motion judge granted Milton Hydro’s motion for summary judgment and dismissed the third-party claim against it. The Town of Milton appealed the decision.
Issues
- Did the third party, Milton Hydro, owe a duty of care that arose out of the assumed removal of a luminaire?[4]
- Did the alleged failure of the appellant, the Town of Milton, to notice the missing luminaire constitute an intervening act that severed any potential liability from Milton Hydro’s assumed removal of the luminaire?[5]
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