Statements of claim should not be seen as absolute fact: Daya
By AdvocateDaily.com Staff
It is important to not assume statements of claim are absolute fact when considering allegations contained in a lawsuit, says Toronto personal injury lawyer Jasmine Daya.
Daya, managing principal with Jasmine Daya & Co., was referring specifically to a wrongful death lawsuit launched against celebrity businessman Kevin O’Leary and his wife Linda O’Leary following a fatal boat crash on an Ontario lake last summer.
“The lawsuit was commenced by a statement of claim that seeks a monetary amount. However, that amount is almost never obtained,” Daya tells AdvocateDaily.com.
“The statement of claim will also make allegations against the defendants, in this case, the O’Learys, that have not yet been proven. Generally, a personal injury lawyer will add every possible allegation, as there could be negative repercussions if the lawyer fails to advance certain arguments. The public often hears the amount sought, and the allegations advanced, and mistakenly believes these to be facts.
“It is also unlikely that there will be any payment flowing directly from the O’Learys to the plaintiffs as the watercraft would have been insured and thus the insurance policy will respond to the claim, should a payment result from it.”
The Canadian Press (CP) reports that in an untested and unproven statement of claim, relatives of Susanne Brito — one of two people who died in the collision — are seeking $2 million in damages from the O’Learys as well as from the driver and owner of the second boat.
The crash occurred on Lake Joseph in Seguin, Ont., late one night in August when the O’Learys’ boat, with Brito aboard, collided with one driven by Richard Ruh, 57, of Orchard Park, N.Y.
Florida accountant Gary Poltash, 64, who was on Ruh’s boat, died at the scene. Brito, 48, a resident of Uxbridge, Ont., was critically injured and died in hospital.
“Suddenly and without warning, the O’Leary powerboat violently struck the Ruh powerboat, causing Susanne Brito to suffer serious personal injuries, resulting in her death,” the claim states.
The lawsuit, filed in Superior Court in Oshawa, Ont., argues Brito’s death was the result of negligence.
Among other things, it argues Kevin O’Leary, 65, of Toronto, knew or should have known that his 56-year-old wife was “incapable of operating the powerboat with due care and attention” but let her drive anyway even though she had a propensity for speeding and had no licence.
“He negligently entrusted his powerboat to the defendant, Linda O’Leary, when he knew, or ought to have known, that she was an inexperienced and unsafe driver,” the claim states.
“Although the operator may have caused the accident, it's alleged that the owner consented to Linda O’Leary’s use of the watercraft and is therefore also named as a defendant in the lawsuit,” says Daya, who is not involved in the case and comments generally. “The same occurs in a claim after injuries, impairments or death stem from a car accident. If an owner permits another individual to use their watercraft or their motor vehicle, they must ensure it is being used in a safe and responsible manner, as negligent actions of the operator will result in liability extending to the owner.”
The claim also asserts that Linda O’Leary failed to keep a proper lookout, was driving too fast and failed to heed the horn of the Ruh boat, owned by Irv Edwards, of Manhattan Beach, Calif., who is also a defendant.
“She suddenly and without warning drove the O’Leary powerboat directly into the path of the Ruh powerboat,” the claim asserts.
Police charged Linda O’Leary, who broke her foot in the crash, with careless operation of a vessel. She could not immediately be reached for comment. Her lawyer, Brian Greenspan, has previously said she was driving at a reasonable speed, CP reports.
“If Linda O’Leary pleads guilty or is found guilty of any charges, then it will likely assist in proving liability for the accident,” Daya says. “However, this is not necessary for her to be found liable for the accident from the perspective of a civil lawsuit.”
The lawsuit similarly argues Kevin O’Leary failed to keep a proper lookout, didn’t have the proper training or a boat-operator licence, and failed to give the other boat the right of way. It also asserts he had a history of poor vision, and that health professionals had advised him against operating a powerboat or only under limited circumstances, according to the national news agency.
Daya says boat passengers can only be held liable or partially liable if they were specifically assigned a task, such as serving as a lookout, and it was their failure to adequately fulfil the task that caused or contributed to the accident.
“Generally, however, it’s the operator and owner of the watercraft that will bear responsibility,” she says.
Kevin O’Leary is not facing any criminal charges in the incident.
The suit seeks punitive and aggravated damages as well as general damages from the O’Learys.
“Our family has lost a beautiful, loving person,” Brito’s mother Rosa Ragone said in a statement on Wednesday. “We are devastated. We sincerely hope that through this process, that justice is served.”
– With files from The Canadian Press