Babin v. C.J.M. Dieppe Investments Ltd. and TG 378 Gauvin Ltd. and Sood, 2019 NBCA 44
In the early hours of April 18, 2014, while looking for his passenger located at 378 Gauvin Road in Dieppe, taxi driver Deepak Sood mistakenly drove into the parking lot of neighbouring 388 Gauvin Road. From there, instead of returning to the street to enter the driveway of 378 Gauvin Road, Mr. Sood drove over a grassy, sloped embankment separating the two parking lots. His vehicle dropped into a ditch causing him serious personal injuries.
Mr. Sood sued the owners of both 378 and 388 Gauvin Road, as well as the developer of the parking lot at 378 Gauvin Road. The properties are situated such that 388 Gauvin Road sits at a higher elevation than 378 Gauvin Road. Mr. Sood alleged an “optical illusion” led him to believe that the two properties were at equal elevations and that he could drive from one to the other.
The owner and developer of 378 Gauvin Road applied for summary judgment to have the actions against them dismissed. The Court granted their request.
Mr. Sood appealed, but the New Brunswick Court of Appeal denied the appeal. The Court of Appeal found that the owner and developer of 378 Gauvin Road could not have reasonably foreseen that someone driving from 388 Gauvin Road would believe the two properties were at the same height, drive over the slope and suffer injuries. Further, the alleged optical illusion was visible to persons on the premises of 388 Gauvin Road, not 378 Gauvin Road.
Liability for the owner of 388 Gauvin Road remains to be determined. However, the Court of Appeal acknowledged that optical illusions could potentially be sources of liability.
You can read Babin v. C.J.M. Dieppe Investments Ltd. and TG 378 Gauvin Ltd. and Sood, 2019 NBCA 44 in its entirety here.
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