The lawyer representing the Town of Leamington in a $10-million lawsuit admits he's handled similar actions, but never one launched by a man charged with murder.
The lawsuit, launched by Andrew Cowan, alleges Leamington, the County of Essex, Caesars Windsor, the Leamington Horticultural Society, a landscaping company, and two individuals are liable in the fatal crash that killed 53-year-old Edward Witt. It was filed at the Ontario Superior Court of Justice last October.
Cowan was behind the wheel of a pickup truck that struck a flower bed at the corner of Talbot St. W and Oak St. in Leamington in the early morning hours of October 21, 2012. The truck became airborne and struck the second floor of a former gas station. Witt was a passenger in the truck and last fall, the Ontario Provincial Police charged Cowan with first-degree murder.
Lawyer Alexander Szalkai says the town was served with a Statement of Claim last month alleging the road and the flower bed contributed to the crash. It also alleges Cowan and Witt were over served alcohol at Caesars Windsor the night of the accident. The allegations have not been proven in court, and the town has yet to make a Statement of Defence in the case.
Szalkai says there is a legal precedence that could work in Leamington's favour, Fordham vs. Dutton Dunwich. "There is case law from the Court of Appeal last year that says a municipality doesn't have to design a roadway for negligent drivers."
He predicts much of the civil lawsuit will hang on criminal proceedings against Cowan. "If the evidence turns out to support that charge, whatever he did was deliberate. And driving the car at a high rate of speed is certainly not something that would impose liability on the municipality."
Cowan is back in court May 7 for the start of pre-trial proceedings.