r v. Waycon International, 2014 ONSC 4264

Maria-Antony et al. v. Selliah et al. [Indexed as: Maria-Antony v. Selliah] Ontario Reports Ontario Superior Court of Justice, O'Marra J. September 12, 2014 122 O.R. (3d) 350 | 2014 ONSC 4264 Case

Summary Workers' compensation — Actions — Plaintiff and S employed as truck drivers by lessee of truck — Plaintiff injured in motorvehicle accident caused by driver S's negligence — Application of s. 29 of Workplace Safety and Insurance Act not precludingplaintiff's claim against owner of truck based on vicarious liability under Highway Traffic Act for S's negligence — HighwayTraffic Act, R.S.O. 1990, c. H.8 — Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, s. 29. The plaintiff and S were employed by 136 as truck drivers. 136 leased the truck from FT Inc.

The plaintiff, who was asleep in the sleepercompartment of the truck at the time, was injured in a single-vehicle accident caused by S's negligence. The plaintiff sued S, 136 and FTInc. The Workplace Safety and Insurance Appeals Tribunal found that the plaintiff's right to sue S and 136 was barred by the WorkplaceSafety and Insurance Act, 1997 ("WSIA"), but that the plaintiff had a limited right of action against FT Inc. FT Inc. brought a motion forsummary judgment dismissing the action against it. Held, the motion should be dismissed.

The application of s. 29 of the WSIA did not preclude the plaintiff's claim against FT Inc. as the owner of the truck based on vicariousliability under the Highway Traffic Act for S's negligence. Because s. 29 does not specifically restrict or remove statutorily availablevicarious liability claims, such actions must remain actionable. Ling v. Transamerica Commercial Corp. Ltd. (1980), (ON SC), 31 O.R. (2d) 32, [1980] O.J. No. 3829, 118 D.L.R.(3d) 188, [1981] I.L.R. Â1-1347 at 149, 6 A.C.W.S. (2d) 180 (Div. Ct.); Wadsworth v. Hayes, 1996 ABCA 39 , [1996] A.J.

No.26, 132 D.L.R. (4th) 410, [1996] 3 W.W.R. 561, 36 Alta. L.R. (3d) 204, 178 A.R. 256, 60 A.C.W.S. (3d) 662 (C.A.), consd Other cases referred to 583809 Ontario Ltd. v. Kay (1995), (ON SC), 24 O.R. (3d) 445, [1995] O.J. No. 1626, 55 A.C.W.S. (3d) 646 (Gen.Div.); DiCarlo v. DiSimone (1982), (ON SC), 39 O.R. (2d) 445, [1982] O.J. No. 3529, 140 D.L.R. (3d) 477, 16A.C.W.S. (2d) 149 (H.C.J.); Gibb v. Munro, (SCC), [1981] 1 S.C.R. 42, [1981] S.C.J. No. 5, 117 D.L.R. (3d) 513, 35N.R. 237, [1981] 3 W.W.R. 344, 32 B.C.L.R. 145, 15 C.C.L.T. 235, 10 M.V.R. 95, 7 A.C.W.S. (2d) 4; Meyer v.

Waycon InternationalTrucks Ltd., [1986] O.J. No. 511, 15 O.A.C. 202, 37 A.C.W.S. (2d) 448 (Div. Ct.); Rocchetti v. Pitre, Decision No. 1014/97, [1998]O.W.S.I.A.T.D. No. 340; Zago v. Davies (1985), (ON CA), 50 O.R. (2d) 428, [1985] O.J. No. 2497, 18 D.L.R. (4th)272, 7 O.A.C. 379, 50 C.P.C. 160, 32 M.V.R. 1, 30 A.C.W.S. (2d) 469 (C.A.) Statutes referred to Highway Traffic Act, R.S.O. 1990, c. H.8, s. 192 [as am.] Idaho Code 49-2417(1)

Public Authorities Protection Act , R.S.O. 1980, c. 406 Worker's Compensation Act , R.S.A. 1980, c. W-16, s. 18(2) Workers' Compensation Act , R.S.O. 1990, c. W.11, s. 10(11) [page351] Workmen's Compensation Act , R.S.O. 1980, c. 539, s. 8(11) Workplace Safety and Insurance Act, 1997 , S.O. 1997, c. 16, Sch. A, ss. 28, (4) , 29 ,

(4) MOTION for

summary judgment dismissing an action as against a moving party. John J. Adair and Gordon McGuire , for plaintiff/respondent. Roderic McLauchlan and Sara Benbrahim , for the defendant/moving party. [ 1 ] O'MARRA J. : — The defendant Financial Transport Inc. ("FTI") has brought a motion for

summary judgment to dismiss the plaintiffs' action for personal injury and Family Law Act damages in relation to injuries suffered by plaintiff Kandavanam Maria-Antony in a motor vehicle accident near Lovell, Idaho, U.S.A. [ 2 ] The sole issue on the motion is whether the application of s. 29 of the Workplace Safety and Insurance Act, 1997 , S.O. 1997, c. 16, Sch. A (" WSIA " or the "Act") precludes the plaintiffs' liability claim against the defendant FTI under the Highway Traffic Act , R.S.O. 1990, c. H.8, s. 192 (" HTA "), which imposes vicarious liability on the owner of a car for negligence of the driver.

The parties agree that the only genuine issue is a question of law which can be determined by

summary judgment. [ 3 ] On October 5, 2000, the date of the single-vehicle accident, Kandavanam Maria-Antony and defendant Sritaran Selliah ("Selliah") were employed as transport truck drivers for 1362038 Ontario Ltd. ("136"), contracted to transport cargo for 1323109 Ontario Ltd. ("132"). The transport truck was owned by Financial Transport Inc. ("FTI"), but leased to 136 for its exclusive use in its business operations during the term of the lease. Selliah was operating the transport truck and Kandavanam Maria-Antony was asleep in the sleeper compartment at the time of the accident.

Idaho State Police investigation determined that the single-vehicle accident was caused by Selliah losing control of the transport truck on a curve in the roadway due to excessive speed. [ 4 ] There is no dispute between the parties that the evidence obtained through the investigation indicates that the single-motor-vehicle accident resulted from the negligence of Mr. Selliah. [ 5 ] On March 8, 2007, the Ontario Workplace Safety and Insurance Appeals Tribunal issued a decision under the WSIA that Maria- Antony's right to sue defendants Selliah, 136 and 132 was barred by the provisions of the WSIA .

The tribunal found that s. 28 of the Act precluded Maria-Antony's action against the numbered company defendants and Mr. Selliah on the basis that they were "protected" defendants under the Act. [page352] The tribunal determined that Financial Transport was not an employer in relation to either Mr. Selliah or Mr. Maria-Antony. [ 6 ] The tribunal concluded that the plaintiffs' right of action against FTI was not barred pursuant to s. 28(4) .

Immunity under the Act did not apply to FTI because it was "an employer other than the worker's employer that supplied a motor vehicle . . . on purchase or rental basis without also supplying workers to operate the motor vehicle". The tribunal stated the plaintiffs had "a limited right of action against Financial Transport" pursuant to s. 29(4) of the Act without expanding on what was meant by a "limited" right of action. [ 7 ] Subsequently, the defendants brought a

summary judgment motion based on the decision of the Ontario Workplace Safety and Insurance Appeals Tribunal, on which Sosna J. of the Superior Court of Justice dismissed claims against Selliah, 136 and 132 by order dated November 27, 2007. [ 8 ] The defendant FTI's position is that the appeals tribunal's decision limited the plaintiff's rights against FTI, by making its liability several rather than joint, thereby limiting liability to its own negligence. It was Selliah's negligence that caused the accident and resultant injuries.

There is no evidence of direct or independent negligence on FTI's part with respect to the accident and injuries to Maria-Antony therefrom. FTI owed no duty of care owed in the circumstances. [ 9 ] The plaintiffs contend that while any action against the driver, Selliah, is statute-barred by operation of the WSIA , s. 192 of the HTA imposes vicarious liability on the vehicle owner, FTI, for the driver's negligence. [ 10 ] The relevant provisions are set out below. Workplace Safety and Insurance Act, 1997 , S.O. 1997, c. 16, Sch. A . . . . .

Certain rights of action extinguished 28(1) A worker employed by a

Schedule 1 employer, the worker's survivors and a

Schedule 1 employer are not entitled to commence an action against . . . 1. Any

Schedule 1 employer. 2. A . . . worker employed by any

Schedule 1 employer. . . . . . Restriction

(3) If the workers of one or more employers were involved in the circumstances in which the worker sustained the injury, subsection (1) applies only if the workers were acting in the course of their employment. [page353] Exception (4) Subsections (1) and (2) do not apply if any employer other than the worker's employer supplied a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate the motor vehicle, machinery or equipment. Liability where negligence, fault 29(1) This

section applies in the following circumstances: 1. In an action by or on behalf of a worker employed by a

Schedule 1 employer or a survivor of such a worker, any

Schedule 1 employer or a director, executive officer or another worker employed by a

Schedule 1 employer is determined to be at fault or negligent in respect of the accident or the disease that gives rise to the worker's entitlement to benefits under the insurance plan. 2. In an action by or on behalf of a worker employed by a

Schedule 2 employer or a survivor of such a worker, the worker's

Schedule 2 employer or a director, executive officer or another worker employed by the employer is determined to be at fault or negligent in respect of the accident or the disease that gives rise to the worker's entitlement to benefits under the insurance plan. Same

(2) The employer, director, executive officer or other worker is not liable to pay damages to the worker or his or her survivors or to contribute to or indemnify another person who is liable to pay such damages. Determination of fault

(3) The court shall determine what portion of the loss or damage was caused by the fault or negligence of the employer, director, executive officer or other worker and shall do so whether or not he, she or it is a party to the action. Same

(4) No damages, contribution or indemnity for the amount determined under subsection (3) to be caused by a person described in that subsection is recoverable in an action. Highway Traffic Act , R.S.O. 1990, c.

H.8 . . . . . 192(2) The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner's consent in the possession of some person other than the owner or the owner's chauffeur. [ 11 ] The parties accept that for the purpose of this motion the law of Idaho which renders motor vehicle owners vicariously liable for the negligent operation of their vehicle by another person operating the vehicle with permission is the same as the Highway Traffic Act .

Idaho Code 49-2417(1) states: [page354] 49-2417(1) Every owner of a motor vehicle is liable and responsible for the death of or injury to a person or property resulting from negligence in the operation of his motor vehicle, in the business of the owner or otherwise, by any person using or operating the vehicle with the permission, express or implied, of the owner, and negligence of the person shall be imputed to the owner for all purposes of civil damages.

Discussion [ 12 ] The WSIA creates a scheme in which employers receive various statutory protections in exchange for contributing to the worker's compensation fund. In Meyer v. Waycon International Trucks Ltd. , [1986] O.J. No. 511 , 15 O.A.C. 202 (Div. Ct.) , at p. 5 (QL) , Rosenberg J., as he then was, observed: The Act is intended to give no-fault benefits to employees injured in the course of their employment with

Schedule 1 employers (the only

employers involved in these proceedings). The scheme of the Act requires that workers and their dependents give up their rights to suetheir employer in exchange for compensation under the Act. As has been stated in a number of cases, the employer has already paid byhis contribution to the accident fund. [13] Similarly, as observed by Hollingsworth J. in Meyer v. Waycon, citing Osler J. in DiCarlo v. DiSimone (1982), (ON SC), 39 O.R. (2d) 445, [1982] O.J.

No. 3529, 140 D.L.R. (3d) 477 (H.C.J.), at p. 479 D.L.R., the purpose of the Workmen'sCompensation Act, R.S.O. 1980, c. 539 is to remove from the court's jurisdiction dealing with the rights of employees and the liability ofemployers when personal injuries are suffered by employees of such employers in the course of their employment. [14] With respect to s. 8(11) of the Workmen's Compensation Act, predecessor to s. 29(4) of the Workplace Safety and Insurance Act,1997, Rosenberg J. in Meyer v.

Waycon International Trucks Ltd. wrote, at p. 6 (QL), that the subsection . . . was intended to cover the situation where there are multiple defendants, some of whom are protected by the Act and some of whomare not, and to provide that the defendants who are not protected by the Act are only responsible for that portion of the damages thatrelates to their portion of negligence.

It has been held in a number of cases that even though the negligent defendants are jointly andseverally liable, that under the Act they are only severally liable to the extent of their negligence. [15] The defendant relies principally on Ling v. TransAmerica Commercial Corp. Ltd. (1980), (ON SC), 31 O.R. (2d)32, [1980] O.J. No. 3829 (Div. Ct.) in support of its position. [16] Ling involved a motor vehicle collision between a truck operated by the plaintiff and owned by his employer and a station wagonoperated by the defendant driver, which was owned by the lessor, TransAmerica Commercial Corp. Ltd.

The drivers and employers wereprotected by the Worker's Compensation Act, [page355] whereas Transamerica was unprotected, a "stranger" to the Act. The issue beforethe tribunal was whether the plaintiff's claim against TransAmerica could proceed on the basis of its vicarious liability for the defendantdriver's negligence.

The tribunal concluded that s. 8(11), the predecessor to s. 29(4) of the Act, eliminated the claim. [17] The Divisional Court was required to determine whether the board had jurisdiction to make the declaratory determination that "nodamages, contributions or indemnity are recoverable by the plaintiff, Leonard Ling from the defendant TransAmerica Commercial Corp.Ltd. for the portion of the loss or damage caused by the fault or negligence of the defendant Buettner". The Divisional Court concludedthat the board had jurisdiction to determine whether the right of recovery could be made against TransAmerica.

However, it went furtherand stated [at para. 15]: . . . the broad purpose of the Act is to remove litigation between employer and employees. But when I unbutton the words of s-s. (11) andlook at the underlying purpose of the Act, I find no convincing reason to place limitations on the plain meaning of the words. It seems tome that the intention of the legislature was to confer jurisdiction to bar, in the facts of this case, recovery of damages against the ownerof the vehicle involved in the accident giving rise to the litigation, even though the owner is a stranger to the Act.

If the plaintiff'ssubmission is correct and s-s. (11) is inapplicable to TransAmerica, then it would follow that TransAmerica would be liable to pay 100%of the damages but it would be deprived of its common law right of indemnity from Buettner. If it was the legislative intention to depriveTransAmerica of its common law right of indemnity from the driver Buettner, would the Legislature have used different language? Ithink so. [18] In a later case, Rocchetti v. Pitre, Decision No. 1014/97, [1998] O.W.S.I.A.T.D. No. 340, the Workplace Safety and AppealsTribunal applied Ling v.

TransAmerica to conclude that the protection of the Workers' Compensation Act against liability for the fault ornegligence of a person who is protected from lawsuit under the Act applies to a stranger to the Act. The tribunal has the jurisdiction tomake the determination that the owner's liability is limited by the provisions of s. 10(11) [of the Workers' Compensation Act, R.S.O.1990, c. W.11], formerly 8(11) [of the Workmen's Compensation Act] and predecessor to s. 29(4) [of the Workplace Safety and InsuranceAct, 1997]. [19] In that case, the plaintiff and defendant were both employees of the same employer.

Operating separate vehicles while en route to awork site, they collided. Pitre operated a vehicle owned by his mother (Burton), which rear-ended the vehicle owned and operated byRocchetti. Rocchetti suffered injuries and applied for and received compensation benefits. [page356] Pitre was found guilty of carelessdriving and his mother's insurer admitted liability within the limits of her policy.

The Workers' Compensation Board subrogated itsinterest in the action for the amount of benefits paid to the plaintiff. [20] On application by the defendant, the tribunal held that Pitre and Rocchetti were acting in the course of their employment at the timeof the accident.

It held Rocchetti's action, by subrogation against Pitre, was taken away by operation of the Act and Rocchetti's claim fordamages due to the fault or negligence of Pitre were not recoverable from Burton, a stranger to the Act. [21] However, the plaintiffs' content that even though the action against the negligent driver may well be statute-barred, as in this case,vicarious liability of the vehicle owner imposed by statute continues and the driver's negligence is imputed to the owner. [22] In Zago v. Davies (1985), (ON CA), 50 O.R. (2d) 428, [1985] O.J.

No. 2497 (C.A.), the issue before the courtwas whether the vehicle owner's vicarious liability imposed by the Highway Traffic Act remained available even though the negligentdriver could not be sued or held liable as a result of a missed limitation period by the plaintiff commencing his action.

The defendantdriver could not be sued by the plaintiff because of the limitation period imposed under the Public Authorities Protection Act, R.S.O.1980, c. 406 applicable in the circumstances had been missed by the plaintiff, and thereby statute-barred his action against the driver. [23] Cory J.A., as he then was, stated that although the plaintiff could not proceed against the negligent driver it did not preclude avicarious liability claim against the vehicle owner under the Highway Traffic Act. Cory J.A. wrote the following [at paras. 11-16]: It is significant that the

section first refers to the owner who is made primarily responsible for the negligent operation of a motor vehicleon a highway. There is no restriction placed on this responsibility. In addition, there is no indication that the owner's liability rests on anyparticular relationship or deemed relationship with the driver. Rather, the responsibility of the owner derives solely from his ownershipof that motor vehicle and is activated by the negligence of the driver.

The wording of the statute is clear, direct, wide in its scope and remedial in nature. It existed in this form for over 50 years from 1930 to1983. The

section was enacted for compelling social and practical reasons. The negligent operation of a motor vehicle can cause cripplinginjuries and death leading to crushing financial hardship for the victim. . . . [page357] It is as necessary today as it was in 1930 to ensure, as far as can be done by legislation, that compensation is available to those whosuffer loss as a result of the negligent operation of motor vehicles. It is appropriate to provide the compensation by placing responsibilityupon the owner as well as the driver of a motor vehicle.

If the driver of a motor vehicle falls within the ambit of the Public Authorities Protection Act, he will be shielded from liability if theaction against him is not commenced within the six month time limit. The protective shield, however, does not dissolve the negligence ofthat driver. There is no provision in the Highway Traffic Act to effect that the passage of a special and unique limitation periodexempting the driver from liability also exempts the owner. In the absence of such a provision there is no reason to exempt the ownerfrom the clear liability imposed by the Highway Traffic Act.

The prime statutory responsibility for damages sustained as a result of the negligent operation of a motor vehicle on a highway rests withthe owner. The owner's liability is distinct from that of a driver. That distinct liability arises as a result of the driver's negligence beingimputed to the owner. It does not depend on any particular relationship existing or deemed to exist between the owner and the driver.

Onthe basis of the clear wording of the statute, an owner remains liable for the negligence of his driver, even though the action against thedriver must be set aside due to the expiry of the limitation period set out in the Public Authorities Protection Act.

Thus, Prouse, as owner,remains liable for the negligence of the driver Davies. [24] In the plaintiffs' submission, the importance of Zago with respect to this case is that even though Selliah's liability as driver for theaccident and damages is statute-barred, his negligence is imputed to FTI, as owner, such that it becomes FTI's negligence, by operation ofs. 192 of the HTA. The plaintiffs' claim against FTI is activated by Selliah's negligence.

It is a distinct claim that does not depend on theability of the plaintiff to sue Selliah for his negligent misconduct. [25] In support of its position, the plaintiff also relies on Gibb v. Munro, (SCC), [1981] 1 S.C.R. 42, [1981] S.C.J. No.5, wherein the Supreme Court concluded that the British Columbia's worker's compensation scheme did not preclude vicarious liabilityclaims against vehicle owners, strangers (unprotected defendants) to the Act. [26] In Gibb, the plaintiff sued the driver defendant, employer of the driver and owner of the vehicle. Under the B.C.

Worker'sCompensation Act, both the driver and defendant employer were protected defendants. The owner of the vehicle was not protected. As inthis case, the owner was also deemed by the provincial motor vehicle statute to be vicariously liable for the driver's negligence.

LaskinC.J.C. concluded that vicarious liability claims remain available even where the underlying negligent party is immune from liability, inthat instance by the application of the Worker's Compensation Act [at pp. 47-48 S.C.R.]: [page358] The appellant seeks relief from this consequence by fastening on the immunity of the driver Munro from suit by the injured PatriciaGibb. The contention is that since both drivers are employees under the Worker's Compensation Act, compensation thereunder is the onlyrelief.

From this it is argued that the appellant's liability here is vicarious only and that she cannot, therefore, be sued when her deemedservant cannot be sued. The answer to this is clear enough. The tort committed by Munro does not disappear. Relief against it takesdifferent forms. As against the negligent driver Munro, it lies in compensation; as against the appellant, it lies in court action.

It is onlycourt action against the appellant that is pursued here, and we are not concerned with possibly conflicting claims for compensation anddamages. [27] Thus, the Supreme Court concluded that the worker's compensation scheme did not preclude vicarious liability claims againstowners of the vehicles who were strangers, or unprotected defendants by application of the Act. [28] In another case, which examined the application of a provincial worker's compensation scheme and the issue of vicarious liability,Wadsworth v. Hayes, 1996 ABCA 39 , [1996] A.J.

No. 26, 132 D.L.R. (4th) 410 (C.A.), the Alberta Court of Appeal held theplaintiffs, who were struck by the protected defendant driver, could sue the vehicle's owner on the basis of the owner's statutoryvicarious liability for the driver's negligence. [29] The defendant car owner argued that s. 18(2) of the Alberta Worker's Compensation Act, R.S.A. 1980, c.

W-16 removed anyliability or at least restricted it to personal liability by application of the words "if the court is of the opinion that the employer or worker,by his fault or negligence, contributed to the damage or loss of the plaintiff, it shall hold the defendant liable only for that portion of thedamage or loss occasioned by the defendant's own fault or negligence". [30] In examining the wording of s. 18(2) of the Worker's Compensation Act at issue, the court concluded that the provision did notabolish vicarious liability of the vehicle owner [at paras. 30-32]: Section 18(2) does not restrict liability to the defendant's personal negligence.

Where the Legislature wishes to confine liability topersonal negligence and to exclude vicarious liability, it knows how to do so. For generations the Merchant's Shipping Acts and theCanada Shipping Act have used the phrase "actual fault or privity" to mean negligence which is personal and not vicarious. Nor does s. 18(2) speak of negligence alone; it says "fault or negligence". The word "fault" is a somewhat vaguer word. It was not awell-known term at common law, but got the key role in The Maritime Conventions Act 1911 (Imp.). It repeated the role in the 1930s inthe Contributory Negligence Acts.

The word "fault" without qualification has always been understood to include vicarious liability. [Citations omitted] [page359]

[31] In my view, the comments made by Cote J.A., at paras. 33-34, in rejecting the defendant's argument for public policy considerationsare apposite in this case as well: The essential argument of the defendant owner here is that s. 18(2) of the Workers' Compensation Act abolishes vicarious liability wherethat Act covered the plaintiff. Why the Legislature would want to do that, I cannot imagine. The results would be arbitrary and unjust. Itis clear why the Act bars a suit by one worker covered by compensation against another worker or employer also covered by the samescheme.

They pay premiums to the scheme and get no-fault benefits from it. And it is obvious why the Act bars indirect recovery fromsuch people via third party proceedings. What cannot be done directly should not be done indirectly. However, I can see no reasonwhatever to bar vicarious liability. Vicarious liability runs so deep in our law that the effects of barring it would be incalculable. Our whole scheme of compensation for automobile accidents through compulsory automobile liability insurance would fall down if therewere no vicarious liability.

The law does not require drivers to insure; it requires owners of vehicles to insure. The Highway Traffic Act s.181 imposes liability on vehicle owners for special policy reasons. [32] Where the legislature intends to remove or restrict a right, such as confining liability to personal negligence and to exclude vicariousliability, "the Legislature knows how to do it". To remove a right, it must do so in clear and unambiguous terms (583809 Ontario Ltd. v.Kay (1995), (ON SC), 24 O.R. (3d) 445, [1995] O.J. No. 1626 (Gen. Div.), at para. 13). [33] Contrary to the obiter dicta in Ling v.

TransAmerica, because s. 29 does not specifically restrict or remove statutorily availablevicarious liability claims, such actions must remain actionable. [34] The purpose of the provision at issue is to eliminate joint liability between protected and unprotected defendants that wouldotherwise exist, not to eliminate an unprotected defendant's vicarious liability.

It is to ensure protected defendants are not subject toliability in court by eliminating the principal of joint and several liability with unprotected defendants, and by precluding the unprotecteddefendant from recovering contribution or indemnity from the protected defendants for their negligence. [35] In

summary, the provision does not specifically preclude the vicarious liability of the unprotected owner of the vehicle whereindemnity against the negligent tortfeasor is barred by operation of the Act. The limited right of action cited by the appeals tribunalincludes actions based on vicarious liability. [36] In the result, the defendants' motion for

summary judgment to dismiss the plaintiffs' action is denied. The action shall [page360]proceed to trial. Costs should be left to be determined by the trial judge in the action. Motion dismissed. End of Document