Mr. Lehman

During a negligence jury trial arising from a boating accident causing severe injuries to a swimmer, the court was asked to determine the admissibility of statements allegedly made by homeowners acknowledging the danger of swimming behind their dock.

The defendants argued that the statements formed part of an apology and were therefore inadmissible under the Apology Act, 2009.

The court conducted a contextual analysis of the statements and held that expressions of regret must be excluded but that independent factual statements could remain admissible.

Portions containing apologies were ordered redacted while separate statements acknowledging prior warnings about the danger of swimming behind the dock were permitted as evidence.

The moving defendants brought a summary judgment motion seeking dismissal of the plaintiff’s reliance on the Negligence Act and a declaration that their liability was several rather than joint, following a partial settlement (Mary Carter) agreement between the plaintiff and a co-defendant boat operator.

The agreement capped the settling defendant’s liability and required the plaintiff to indemnify and hold that defendant harmless.

The moving defendants argued that the agreement altered the legal relationships among the parties and eliminated joint liability.

The court held that the agreement did not change the substantive liability framework and did not convert potential joint liability into several liability for the non-settling defendants.

The motion was dismissed.