The plaintiff was injured when riding in a tube being pulled behind a vessel operated by the first defendant. The tube crashed into a boat being operated by the second defendant. At the time of the incident the second defendant also had a tube at the immediate stern of the vessel upon which three children were sitting and waiting for a ride. The first defendant failed to deliver a statement of defence. The second defendant brought this motion for summary judgment on the grounds that there was no evidence of any negligence on his part.
Decision: Motion dismissed.
Held: There was some evidence to support a finding the second defendant was negligent in either moving his boat towards the centre of the bay or in failing to notice the other boat earlier. This is not a case in which a motion Judge can fully appreciate the evidence and make the findings necessary to render summary judgment.