Tracy v. Magic Mountain Ltd., 2017 NBQB 23
The Plaintiff Elizabeth Tracy and her husband brought their three children to the Defendant’s amusement park. While there, the Plaintiff was allegedly injured while on a water slide named the “Torpedo”.
Ms. Tracy commenced an action against the Defendant alleging negligence. The Defendant denied negligence.
The Plaintiff filed a motion for an advanced payment of $300,000.
The motion judge, Justice McNally clarified that in non-motor vehicle claims, liability must be established before the court may exercise its discretion to award an advanced payment of special damages.
The Plaintiff argued that despite the fact that liability was denied, the Court could make an award for advanced payment because the Defendant had previously made a voluntary advanced payment. Justice McNally rejected this argument.
Justice McNally noted that if the Defendant has denied liability, in order to succeed in a motion for an advanced payment, the Plaintiff has to have established liability through a separate motion for summary judgment or a successful trial on liability.
Where the Plaintiff has not established liability, Justice McNally dismissed the Plaintiff’s motion.
You can read Tracy v. Magic Mountain Ltd., 2017 NBQB 23, in its entirety here.