Marine expert opinion needed in wrongful death claim
A fatal boat crash on an Ontario lake this summer will require expert evidence from a marine accident reconstructionist, and investigators may be able to obtain important data from the watercraft involved in the accident, says Toronto personal injury lawyer Rohan Haté.
A wrongful death lawsuit has been filed against celebrity businessman Kevin O'Leary and his wife Linda O'Leary, who was driving their vessel.
In an untested and unproven statement of claim, relatives of a Susanne Brito — one of two people who died in the collision — seek $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.
A Florida accountant, Gary Poltash, 64, who was on Ruh's boat, died at the scene. Brito, 48, a woman from Uxbridge, Ont., was critically injured and died in hospital.
“Suddenly and without warning, the O'Leary power boat violently struck the Ruh power boat, causing Susanne Brito to suffer serious personal injuries, resulting in her death,” the claim states.
In an interview with AdvocateDaily.com, Haté said liability is going to be an issue in this case.
“In terms of evidence in this regard, because this accident occurred on water, it’s more challenging to reconstruct the accident. There are no skid marks, for example, that investigators can rely upon, or debris that may be scattered. Any debris from the boats would have likely sunk or drifted,” says Haté, a partner with McPhadden Samac Tuovi Haté LLP.
“Also, because it occurred at night, there may not be many witnesses to this accident other than the occupants of each boat. Any pictures or videos from cameras or phones will be critical in the investigation,” Haté explains.
“The investigators will be able to rely upon the actual damage to the boats to pinpoint the location of impact. Some boats, just like vehicles and planes, contain a black box that may have data that will assist investigators in determining speed at the time of the collision. Other than the fact this accident occurred on water, there will still be ample evidence to assist the experts in assessing liability.”
Haté, who is not involved in the matter and comments generally, said the case will “almost certainly” require a marine accident reconstructionist to provide opinion on the issue of liability.
“The police also have a collision reconstruction bureau and they would most certainly have also gone out immediately after the accident to determine how this incident occurred. The experts involved in the litigation will be able to rely on the OPP's investigation,” he says.
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 power boat 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 power boat 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.
The claim also asserts 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 power boat directly into the path of the Ruh power boat,” 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.
The lawsuit similarly argues Kevin O'Leary failed to keep a proper lookout, didn't have 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 power boat or only under limited circumstances.
Kevin O'Leary is not facing any 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 AdvocateDaily.com
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