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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

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Archive for the ‘Occupier’s liability claims’ Category

Slip and Fall Lawsuit Dismissed Due to No Evidence of Moisture

January 24th, 2017

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, dismissing a slip and fall lawsuit after a plaintiff failed to prove the existence of any hazard.

In today’s case (Hanes v. Loblaws, Inc) the Plaintiff fell and injured her knee and back while shopping at the Defendant’s store in 2010.  She sued for damages alleging the fall was caused by moisture on the floor.  The Plaintiff ” did not see water on the floor” before or after the fall but assumed the floor was wet because “when she took off her jacket, the back of it was wet“.  The Court dismissed the claim finding this was insufficient to find liability.  In doing so Madam Justice Russell provided the following reasons:

[139]     There is simply no evidence that Ms. Hanes’ fall was caused by moisture on the floor, whether that was a pool of water, or just general moisture causing the surface to become unreasonably slippery.

[140]     The only indication of the presence of moisture at all comes from an assumption on Ms. Hanes’ part that the moisture she says she felt on the back of her jacket, a jacket that did not cover her buttocks, following her fall was caused by water on the floor.

[141]     This evidence is completely uncorroborated. The video disk shows many customers, employees, and managers walking back and forth across the area where she fell before and after the incident. None of them seems to have noticed anything wrong with the surface, and none appears to have lost traction as they traversed the area around the customer service desk.

[142]     Numerous employees inspected the floor and found neither pools of water nor a moist surface.

[143]     It is my view that Ms. Hanes’ shoes were already wet when she entered the store due both to her crossing the snowy church parking lot, and residual moisture on the concrete outside the store.

[144]     With the wet leather soles and high heels she was wearing, it would have been very easy for her to skid a little on her right high heel and to turn her ankle, causing her to fall. However, assigning any cause to her fall is itself speculative.

[145]     In my view, her fall was truly an accident and liability cannot be found against Superstore.

[146]     I also cannot find fault with the quality of the surface of the floor in the Superstore, and I find that the program in place to keep the floor as clean and dry as possible in the circumstances met a reasonable standard of safety.

[147]     It is clear from the witnesses’ evidence and from the video disks that the cleaning program was underway the morning of the fall right up to the time Ms. Hanes fell.

[148]     Ms. Hanes has not established that Loblaws is liable for her fall and injuries. Therefore, it is unnecessary for me to address the damages she alleges she has suffered.

[149]     The plaintiff’s action is dismissed with costs to the defendant.


No Negligence Where Customer Trips on Overlapping Mats

September 12th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a trip and fall lawsuit where a customer fell on over-lapping mats at a grocery store.

In the recent case (Biason v. Loblaws, Inc) the Plaintiff tripped and fell injuring herself while she walked on overlapping floor mats.  She argued that it was negligent for the store to have these mats overlap each other.  The Court noted that counsel could not point to other cases addressing such a fact pattern but ultimately found there was no negligence.  In dismissing the claim Madam Justice Baker provided the following reasons:

[29]         Mr. Patton testified that he was unaware of any previous incident involving a customer tripping over overlapped mats.  Although there was no direct evidence about the depth of the mats, from the description given, and the appearance of the mats on the recording, they were neither deep nor “plushy”.  The front end of the third mat that overlapped a portion of the rear end of the second mat was not wrinkled or buckled or folded back or lifting up in any unusual fashion.  Part of one mat was simply lying on top of part of another mat.

[30]         There is no evidence that there had been previous accidents due to overlapping mats – the evidence is to the contrary.  There is no evidence that the overlapping of mats was a recognized hazard in the industry.  Other customers had been walking over the mats without incident on the day that Ms. Biason tripped and fell…

[35]         I have read and considered all the other authorities provided by counsel.  Taking the authorities and all of the evidence into account, I have concluded that the plaintiff has failed to establish, on the balance of probabilities, that the placement of the mats in the defendant’s store constituted a failure on the part of the defendant to take reasonable care to ensure that the premises were reasonably safe.  The defendant placed the mats in the entryway to protect customers from a readily apparent and recognizable risk – the risk of slips and fall due to wet floors.  I am of the view that it was not reasonably foreseeable that a customer would fail to lift his or her feet sufficiently while walking to avoid tripping on the edge of one of the mats, even if those mats were slightly overlapping.

[36]         Having found no breach of the standard of care, and therefore no liability on the defendant’s part, Ms. Biason’s action must be dismissed.


Ikea’s “Sophisticated” Washroom Cleaning Policies Derail Slip and Fall Lawsuit

May 12th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a slip and fall lawsuit against Ikea.

In today’s case (Dudas v. Ikea Ltd.) the Plaintiff slipped and fell in the washroom and speculated the cause of her fall was water left behind by Ikea’s janitorial contractor.  The Plaintiff sued both Ikea and the janitorial contractor.

Mr. Justice Weatherill dismissed the lawsuit finding the plaintiff’s speculation as to the cause of her fall was insufficient to prove liability but regardless that the washroom cleaning policies, which were followed, were “sophisticated, thorough and detailed” and these were sufficient in defeating the Plaintiff’s allegations of negligence.  In dismissing the claim the Court provided the following reasons:

42]         However, even if the plaintiff had proven on a balance of probabilities that she slipped on water left on the floor by Ms. Kaur while the plaintiff was in the washroom stall, she also has the onus of establishing on the balance of probabilities that she did so as a result of SBS, as an occupier, failing to meet the reasonableness standard required of it under s. 3(1) of the Act.  In my view, the plaintiff failed to do so.

[43]         Mr. Hay, SBS’s Chief Executive Officer, gave detailed evidence regarding the systems it had in place at Ikea for the provision of its maintenance and janitorial services and the training of its staff.  Those systems, policies and procedures are by any measure sophisticated, thorough and detailed.  It is hard to imagine reasonable steps that could have been implemented to improve them.

[44]         The plaintiff submits that it is apparent from the SBS Incident report that Ms. Kaur, the cleaner in question, knew that someone was in the washroom stall while she was mopping the floor, and that it was unreasonable for SBS not to have an established protocol in place for the cleaner to verbally alert patrons who were using washroom stalls to the fact that the floor outside of the stall was being mopped. 

[45]         Mr. Hay agreed that there is no such protocol in place.  He testified that, in such situations, SBS relies on the noise generated by the cleaners during the cleaning process. 

[46]         The plaintiff submits that the failure to have such a protocol was a breach of SBS’s obligations under s. 3 of the Act.  I disagree.  There is no evidence that such a policy exists anywhere in the industry.  Moreover, it raises policy issues relating not only to privacy, but also equality considerations in terms of the potential for hearing persons being preferred over non-hearing persons. 

[47]         This incident took place in a ladies washroom.  The potential for some dampness on the floor ought reasonably to have been expected by anyone using it.  The mere presence of some water on the floor does not constitute an objectively unreasonable risk of harm: Zary v. Canada Mortgage and Housing Corp., 2015 BCSC 1145 at para. 57.


BC Supreme Court – Nothing Negligent About Kids Playing “Grounders”

October 1st, 2015

Reasons for judgement were released today by the BC Supreme Court, Victoria Registy, addressing whether a variation of tag called ‘grounders’ played by kids at school was negligent.  In short the Court held it was not.

In today’s case (Thompson v. Corporation of the District of Saanich) the Plaintiff was playing a game called ‘grounders’ with other kids aged 8-11 at a middle school day camp during recess when she fell fell from a piece of playground equipment and struck her head.  She sued for damages arguing the school was negligent in allowing kids to play this game.  The court dismissed the claim finding this was nothing more than an unfortunate accident.  In reaching this conclusion Mr. Justice Baird provided the following reasons:

4]             The program assistant who was supervising the playground at the material time knew that the plaintiff and her young peers were playing grounders and did not stop them. Indeed, the evidence suggests that he may well have participated in the game for a time. He deposed in evidence that he had played and enjoyed the game himself as a child and considered it to be perfectly harmless. He described the rules as follows:

Grounders is a version of tag in which one child is “it” and the other children climb on to the playground structure. The child who is “it” attempts to “tag” the children on the playground structure from the ground. The children on the structure move around to avoid being tagged. If the child who is “it” decides to climb on to the playground structure they have to close their eyes. The other children on the playground structure never close their eyes and this gives them a significant advantage. If the child who is “it” opens their eyes while on the playground structure the other children yell “broken dishes, broken dishes.” If a child that was not “it” climbed off the playground structure the child who was “it” could yell “grounders” and then the other child who was on the ground would become “it”.

[19]         The evidence submitted on this hearing establishes, and my own experiences both as a child and a parent confirm, that grounders and games like it involving pursuit and evasion are commonly played by children, who enjoy them — as did the plaintiff, whose evidence on this point was clear — because they are exciting and fun. I am prepared to take notice of the fact that, in the overwhelming majority of cases, no mischief comes to anyone from such innocent pleasures.

[20]         Specifically, I find that there is nothing inherently dangerous about grounders such that special training or instruction is required to play it or to superintend children of the plaintiff’s age and experience who choose to do so. I must reject the argument advanced by the plaintiff that it was the sort of activity that required parental consent or approval in advance. There is no doubt that games like grounders involve a small degree of risk, as do all children’s outdoor activities involving running, jumping, climbing, tagging, chasing, dodging, feinting, and so on. But judging the matter by the objective measure of the reasonably careful and prudent parent, I conclude that the risk of harm inherent in such games is sufficiently remote that to permit children to play them is not unreasonable.

[21]         The evidence satisfies me, furthermore, that the plaintiff and her peers were adequately supervised during their play time. I repeat that the District’s duty to the plaintiff did not include the removal of every possible danger that might arise while she was in the care of its employees, but was only to protect her from unreasonable risk of harm. A supervisor was close at hand minding the children throughout the recess. There was nothing to suggest that he was doing so other than diligently and conscientiously. He was standing on the playground equipment near to the plaintiff at a vantage that gave him a good view of the game and the state of play. There was no evidence that any of the children were behaving recklessly or aggressively or that there was anything unpleasant, malevolent or hazardous about their manner of interaction. The plaintiff was not pushed or touched. She said quite simply that she was moving backwards away from the child who was “it” and lost her footing.

[22]         I sympathise strongly with the plaintiff and her family. What little I was told about the consequences of this accident suggested that the plaintiff’s injuries were not trivial. But I am afraid that the consequences of the plaintiff’s misadventure cannot transform the District into a no-fault insurer, and perfection is not the standard of care to be discharged by its employees when minding school-aged children.


Deficient Wheelchair Ramp Leads to 50% Liability for Slip and Fall

January 12th, 2015

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding a defendant 50% at fault for a slip and fall for building a wheelchair ramp which failed to comply with the BC Building Code.

In today’s case (Tenhunen v Tenhunen) the Defendant was a partial paraplegic.  She built a wheelchair ramp on her property for her own use but did not build it to code.  The Plaintiff slipped and fell on this ramp while visiting and suffered various injuries.

In finding the Defendant 50% liable for the incident due to the deficient ramp Mr. Justice Johnston provided the following reasons:

[55]         I find that the defendant failed to take reasonable care for the safety of those, including the plaintiff, who she knew or ought to have known would use the lower ramp. That failure consisted of building too much slope into the ramp, not providing a guard or handrail on the outside, and not making some effort to enhance traction between 2005 and 2011.

[56]         I do not view this as a case where the defendant is relieved from a duty of care because the plaintiff willingly assumed the risk, a defence available under s. 3(3) of the Act. The defendant has not directly argued that the plaintiff willingly assumed the risks of walking down the ramp, but may have indirectly raised the question by arguing that the plaintiff’s contributory negligence is overwhelming and by choosing to proceed down the ramp, the plaintiff was the author of her own misfortune.

[57]         In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 60 (S.C.), McLachlin J., then a judge of this court, said of the statutory defence the following :

A further defence available under the Occupiers Liability Acts of both Ontario and British Columbia, arises from the provisions of those Acts that an occupier owes no duty of care to a person in respect of risks willingly accepted by that person as his own risks: Occupiers Liability Act (B.C.), s. 3(3); Occupiers’ Liability Act (Ont.), s. 4(1). To establish such assumption of the risk, Show Producers need not prove the traditional volenti defence. The standard is considerably lower. For example, in Epp v. Ridgetop Bldr. Ltd. (1978), 8 Alta. L.R. (2d) 195 (T.D.), it was held that a person who was familiar with the circumstances so that he could recognize and avoid danger, assumed the risk of that danger, with the result that the occupier was not liable. Similarly, in Schulz v. Leeside Dev. Ltd., [1978] 5 W.W.R. 620, 6 C.C.L.T. 248, 90 D.L.R. (3d) 987 (B.C.C.A.), it was held that an occupier is not liable for dangers that are known to the user or are obvious to him or are so commonly known that it can be reasonably assumed that the user will be familiar with them. In Holman v. Ellsmar Apt. Ltd. (1963), 40 D.L.R. (2d) 657 (B.C.S.C.), the plaintiff was held to have been fully aware of the condition of an unlighted sidewalk and to have fully accepted the risk of danger. The occupier was absolved of responsibility.

[58]         While the plaintiff could see she was about to walk down a damp wooden ramp, and elected to proceed on the side without a guard or handrail, she could not see that the ramp was steeper than it should have been. Notwithstanding that the standard under s. 3(3) is lower than a common law volenti defence, I conclude that the plaintiff did not willingly assume the risk of walking down a ramp that was too steep.

[59]         I do find that the plaintiff failed to take reasonable care for her own safety in one respect, however. She knew there was no outside guard or handrail when she stepped onto the lower ramp, and she knew there was a handrail at least on the inside of the ramp. Even allowing for increased slipperiness because there was more debris on the inside of the lower ramp, the plaintiff was negligent to forego the increased safety of the handrail.

[60]         I accept that the plaintiff was keeping a reasonable lookout, and otherwise taking reasonable care for her own safety.

[61]         In all of the circumstances, I apportion liability 50% to the defendant, and 50% to the plaintiff.


Deep Sea Terminal Negligent After Failing To Warn User Of Automated Gangway

October 24th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding Prince Rupert Grain Ltd. (PRG), who operated a deep sea terminal, negligent for failing to meaningfully warn the Plaintiff about an automated gangway.

In the recent case (Ranjabar v. Islamic Republic of Iran Shipping Lines) the Plaintiff was a cook on a foreign commercial vessel.  It docked at the Defendants deep sea terminal.  After a brief time at shore, as the Plaintiff was attempting to board the vessel, the automated gangway lifted and the Plaintiff fell onto the ship below fracturing his femur.

The Defendant PRG was found liable with the court finding the gangway was “both unusual and dangerous“.  The court noted that the English language warning signs were insufficient notice of this danger in the circumstances where occupants of foreign vessels were expected to encounter it.

At paragraphs 81-101 the Court sets out a lengthy list of applicable legal principles in occupiers liability cases concerning the use of a gangway.  In finding PRG liable Madam Justice Dillon provided the following reasons:

[104]     Did the gangway pose an unusual danger? Yes, it did. The automatic gangway was both unusual and dangerous. It was unusual because none of the seamen who testified, including Ranjbar, Salmannia and Malayeri, had ever seen such a gangway in all of their combined years at sea around the world. Usually, a ship (and certainly the Iran Mazandaran) used its own gangway to access a terminal. Usually, it was continuously monitored and operated manually. Based upon this evidence, it is concluded that the average crew member would not have expected the gangway to rise automatically, especially with someone on it. Salmannia thought that “automatic” meant that the ladder remained at all times on the ship deck. The alarm cycle and sequence before lifting of the gangway was both unusual and dangerous if not known. None of PRG’s personnel who testified could interpret the record of the alarm sequence exactly and could not explain why or when the sequence was altered from the original operations manual. It was not obviously visually apparent to either Ranjbar or to Salmannia that the gangway automatically lifted…

[107]     PRG acknowledged this danger by placing the signs and using the horn to warn of danger from movement of the automatic gangway if someone was on it. Whether they were adequate is another question. The assistant maintenance superintendent for the terminal admitted that the gangway was dangerous, especially if one was on the ladder when it lifted. He had never attempted to experience the ladder when the gangway lifted because of the danger…

[113]     Did the failure of PRG to adequately warn of the danger cause Ranjbar to fall from the ladder? The answer is yes. If Ranjbar had known that the gangway would lift automatically, raising the stepladder off of the deck of the ship, he would not have waited while he threw down the backpack to Heidar and then proceed down the ladder. Heidar did not change his conduct as a result of the signs or horn, indicating that he, too, did not appreciate the danger. When the gangway started to lift, Ranjbar did not know what was happening and did not know what to do. Even if he had seen them, the warning signs were inadequate to transmit the danger to him. Ranjbar was aware of dangers generally at the terminal and took care, but relied upon others to inform him about specific dangers. He was a new visitor to this terminal and was given a security pass, but was not told anything about this gangway. The nature of the gangway as automatically lifting regardless that someone was on it was not obvious. It cannot be said in all of the circumstances that the plaintiff’s misunderstanding of the signs and horn was the cause of his injury…

[117]     In conclusion, following careful consideration of all of the facts and the guidance of the law, PRG is 100% liable for the injuries caused to the plaintiff.


Court of Appeal Finds Insufficient Warning Sign Not Causative of Trip and Fall Injuries

June 3rd, 2014

Reasons for judgement were released today by the BC Court of Appeal overturning a trial judgement and dismissing a trip and fall lawsuit.

In today’s case (Simmons v. Yeager Properties Inc.) the Plaintiff injured herself at the Defendant’s bakery.  Outside the bakery was a concrete landing and a wooden patio deck.  There was a 2-4 inch height difference between these surfaces.  The Defendant marked this with paint and also with a sign that read “watch your step please“.  The sign faded over time with the words ‘watch‘ and ‘step‘ becoming ‘quite faded and difficult to see‘.

At trial the Court found the Plaintiff 75% at fault with 25% blame going to the Defendant’s on the basis of the faded sign.  The BC Court of Appeal outright dismissed the claim finding the faded sign was not causative of the injuries given that the Plaintiff was not looking in the direction of the sign and did not see it at all.  In reaching this conclusion the Court provided the following reasons:

[12]Thus the judge determined the bakery owners’ maintenance was inadequate to refute the conclusion that the ineffective warning sign constituted a breach of the Occupiers Liability Act:

[42]      Accordingly, I find that the plaintiff has proven on a balance of probabilities that by failing to maintain the outdoor waning sign, the defendants failed to take reasonable care to ensure the exterior area leading to the entrance of the bakery was reasonably safe.

[13]        This, however, is the extent of any finding the judge made of any breach of the Occupiers Liability Act or the standard of care attributable to the owners of the bakery and, in considering Ms. Simmons’ neglect for her own safety, the judge then went on to find that Ms. Simmons was not looking in the direction of the sign prior to her fall:

[45]      Here, I find that the patio step was there to be seen by the plaintiff had she paid attention to where she was going. It was demarcated by white paint that was generally visible to persons accessing the bakery entrance from the patio deck. The photographs of the area taken shortly after this incident show that the paint was not faded and worn as suggested by Mr. Murphy. It is questionable whether the faded outdoor warning sign was a significant factor in the circumstances since the plaintiff was not looking in that direction and did not see the sign at all.

[46]      If the plaintiff had been watching where she was walking, she would likely have seen that there was a difference in level from where she was to where she was going. I find her expectation that the entire walking surface would be level to be an unreasonable one, as she was not paying attention but was instead focused on the woman in front of her and on the front entrance to the bakery.

[14]        With respect, I am unable to see how it can be said the bakery owners’ breach of the Occupiers Liability Act renders them liable for the injuries Ms. Simmons suffered when she fell. The fact the sign was not properly maintained such as to have been readable cannot have caused Ms. Simmons to fall if, as the judge found, she was “not looking in that direction and did not see the sign at all”. Had the sign been readable it would have made no difference. Ms. Simmons would not have seen it. The bakery owners’ breach of the duty they owed to patrons like Ms. Simmons cannot have caused her fall.

[15]        Thus Ms. Simmons failed to “show on a balance of probabilities that ‘but for’ the defendant’s negligent act, the injury would not have occurred” (see Clements at para. 8). The facts found by the judge do not provide a legal basis for determining the owners of the bakery to be liable for the injuries Ms. Simmons suffered when she fell.

 


School Found Liable After Child Sneaks Onto Roof and Falls

February 7th, 2014

(Update December 1, 2014 – the BC Court of Appeal upheld the below decision in reason released today)

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, finding a school liable after a child was severely injured following a fall from the school roof.

In today’s case (Paquette v. School District No. 36) the 12 year old plaintiff was playing on school grounds after hours.  There was a tree in close proximity to the school.  He climbed the tree onto the roof of the school with a friend.  The vice principal heard them and yelled for them to get down.  Trying to go unidentified they attempted to climb down via a different route.   The Plaintiff “hung down from the edge of the roof, presumably placed his feet on the top of the wire fence, and safely jumped to the ground. Unfortunately Owen lost his grip on the roof. He slipped and then fell all the way onto a cement surface at the bottom of the stairwell, a total distance of about 20 or 21 feet.”

The Plaintiff sued for damages.  The School was found 75% at fault for having the tree in such close proximity to the school that kids could climb it.  In reaching this conclusion Madam Justice Sharma provided the following reasons:

[35]         First, most of the time the defendant knew people had been on the school roof, the defendant did not know how they got there. The lack of evidence about people having previously used the cherry tree to access the roof is, therefore, unsurprising. On one occasion the defendant did know that someone climbed a tree close to the school to access the roof. As Mr. Hurd rightfully conceded, a tree close to the school will tempt kids to climb it and get onto the roof. I conclude it was foreseeable that trees close to the school might be used to access the roof. It is simple common sense that if a child can get onto a roof, it is reasonably foreseeable that the child might fall off that roof and get badly injured.

[36]         Second, there was no evidence of “regular monitoring” of potential access points to the school roof. If there was at any time either a schedule of routine inspection or an assessment of trees proximate to the school that could potentially provide access to the roof, I would have expected that to be put into evidence as it would have clearly been material to this case.

[37]         Instead, the evidence demonstrates that if the defendant took any action in response to knowing youth had been on the roof, it was only reactive and ad hoc. This was despite the fact that there were numerous possible access points to the roof, as depicted in Mr. Delavalle’s photographs.

[38]         Mr. Hurd’s evidence establishes that this school had a problem with youth getting onto its roof. The numerous incidents he recalls confirm that this problem was known to the principal, teachers, maintenance workers, students and their families and others. Despite this, there is no evidence that the defendant required anyone to turn their mind to whether any trees were growing too close to the school roof and providing the access that allowed for this problem to persist.

[39]         In making these findings, I am mindful that the defendant is not expected to be perfect and that it would be impossible to completely prevent anyone getting on the school roof other than in an authorized fashion. However, taking into account all the circumstances of this case, it was unreasonable that the defendant allowed the cherry tree to grow so close to the school’s roof.

[40]         The defendant also argues it should not be held liable because most, if not all, other instances of people being on the roof occurred on the weekend and probably involved teenagers. The problem with that submission is the issue in this case is not about when the roof was accessed. Rather, the issue is whether the defendant’s actions in relation to possible roof access points were reasonable. The school is a permanent structure and its grounds are open to the public. When the roof was accessed is immaterial to the determination of whether the defendant acted reasonably in allowing the cherry tree to grow so close to the roof.

[41]         The same reasoning can be applied to the defendant’s argument that it was likely only older, non-students who had been on the roof previously. I note the evidence about the age of the people on the roof on weekends was obviously speculative, except for the two instances Mr. Hurd witnessed. It would be imprudent to place significant weight on this point when the evidence is not conclusive. But even if it was proven that all prior incidents involved teenagers, I do not find that that fact would support a conclusion that this accident was not foreseeable. If there are numerous instances of teenagers being on the roof, the elementary school students would know about it. This inference is confirmed by Mr. Hurd’s evidence that he received reports from his students about people on the roof during weekends. It is common sense that if students know that older youth have been on the roof, they may be tempted to do the same. More than one witness agreed that tree climbing is a normal part of childhood.

[42]         Mr. Hurd testified he was surprised that was how the boys got on the roof because he thought the tree was flimsy. As noted above, I have found the cherry tree had a study branch close to the roof. More importantly, in my view a reasonable person understands that a child might try climbing any tree close to the roof, flimsy or not. Owen was a 12 year old boy. Children act impulsively, with little forethought about the consequences of their actions and with limited insight. Put more simply, reasonable people foresee that children can and often do stupid things that are dangerous even when they know they shouldn’t.

[43]         I am not suggesting that the inherent nature of childhood means an occupier is liable for anything that a child might do. As always, each case must be assessed in context, reviewing all the circumstances.

[44]         Given the circumstances at this particular school, a reasonable person would foresee that the cherry tree (or any other tree in similar proximity to the school roof) might be used by kids to climb onto the roof. As such, the defendant is liable for not taking reasonable actions to prevent children accessing the school roof via the cherry tree.


Occupier’s Liability Claim Dismissed After Slip and Fall On a Well Used Short Cut

November 20th, 2013

BC law requires ‘occupiers’ to take reasonable steps for the safe use of their property.  The law does not require a standard of perfection as was demonstrated in reasons for judgement released this week by the BC Court of Appeal.

In this week’s case (Dandell v. Thompson Rivers University) the Plaintiff slipped and fell while walking down an “icy pathway into a grassy snow-covered hill” while walking to class.  He chose this path despite the availability of a “convenient and well-maintained sidewalk leading right to the place where he was going“.

The Plaintiff suffered severe fractures to his leg and ankle.  He sued for damages arguing that the University was at fault because they knew this shortcut was being used and that it posed a danger.  The case was dismissed at trial and the BC Court of Appeal upheld the dismissal finding that the University acted reasonably.  In reaching this conclusion the BC Court of Appeal provided the following reasons:

[4]             The building Mr. Dandell was going to when he fell opened in 1997.  It is adjacent to a roadway.  The sidewalk alongside runs parallel to the building and then cuts back slightly in a V-shape leading down to the ground level entrance.  Instead of following the sidewalk into the building, many students would cut the corner, as it were, by walking down one of the pathways worn into the grassy hill from various points at the top.  They saved 11 seconds in walking time.  The practice was ongoing year round with the incumbent risk in winter conditions that someone would slip and fall.  This was evident to the university’s administration, although there had never been a report of an injury.  Mr. Dandell had seen students using the shortcut in winter conditions lose their footing, but it did not cross his mind he might fall and be injured.  In hindsight he was, by his own candid admission, “thoughtless” in regard to his safety.  He chose to walk down what was a visibly icy slope instead of using a cleared sidewalk and, near the bottom, he fell…

[11]         I am unable to accept Mr. Dandell’s contention that, by virtue of what was said in Waldick, the university was, as a matter of law, required to eliminate the risk of a student being injured as he was.  InWaldick, the court was concerned with an injury that occurred as a consequence of an occupier’s failure to provide any safe access to a home.  The only access at the time of the incident in question was icy, slippery, and covered with a dusting of snow.  No one could access the home without being exposed to a risk of the injury that was suffered.  As is made clear in the passage quoted above, the legislation requires positive action to remove or minimize the risk of injury, not in every instance but where the circumstances warrant.  It is the circumstances in any given instance that govern what the occupier must do to take reasonable care to see that those on the premises will be reasonably safe.

[12]         Here there was a well-maintained access to the building the university intended students like Mr. Dandell to use rather than taking the shortcut.  It would have taken him only 11 more seconds.  Far from being arguably irrelevant, the university’s positive action to maintain a safe access to the building was clearly a proper and significant factor in the judge’s application of the legal standard of reasonableness in all of the circumstances. 

[13]         The trial decisions Mr. Dandell cites to support his contention that an alternative access is not necessarily conclusive of the occupier’s duty having been discharged appear to me to be instances where the risk of injury, or the alternative access, although known to the occupier, was not apparent to the person injured.  Kinnear v. Canadian Recreation Excellence (Vernon) Corp. (February 24, 2011), Vernon Docket 39746 (B.C.S.C.), is an example of an alternative access (40 seconds longer) being largely conclusive of the proper discharge of an occupier’s duty in circumstances somewhat similar to those leading to the injury Mr. Dandell suffered.  The existence of an alternative access, like the extent to which the risk taken was apparent, must be a part of all the circumstances to be considered in applying the legal standard in any given case where a choice of access – one safe, the other not – is made.


Slip and Fall Claim Dismissed Due To Lack of Proof of Hazard

September 25th, 2013

As previously discussed, slipping and falling in and of itself does no lead to a successful lawsuit for damages.  There needs to be evidence of negligence or a breach of the Occupier’s Liability Act for such a claim to succeed.  Absent proof of a hazard causative of the fall claims fail at trial.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, demonstrating this.

In this week’s case  (Fulber v. Browns Social House Ltd.) the Plaintiff was a customer at the Defendant’s restaurant.  She was “wearing high-heeled shoes with a stiletto heel four and a half inches high“.  As she was walking in the restaurant she slipped and fell on the hard wood floor.   .  She did not notice anything on her shoes or her clothes “and did not feel any dampness on her bare skin“.  The Court noted that although the Plaintiff deposed “that she slipped on something” she could not identify the hazard she fell on her belief was based on inferences which she has drawn “essentially on the fact that she fell”.  The Court noted that this was not sufficient to prove wrongdoing by the Defendant and dismissed the claim.  In doing so Madam Justice Gray provided the following reasons:

[48]         The evidence does not establish that there was any hazard on the floor that caused Ms. Fulber to fall, whether it was a liquid or another foreign substance. Neither does the evidence give rise to a reasonable inference that there was liquid or another foreign substance on the place that Ms. Fulber fell.

[49]         While the place that she fell was relatively close to the bar, it was a matter of feet from the serving area. It is highly unlikely that a drink would slosh all the way from the serving area to that area on the floor. While it may be possible that there have been times that some liquid has fallen in the place where Ms. Fulber fell, on all the evidence I must conclude that there was not a hazard in the place where Ms. Fulber fell.

[50]         As a result, I must allow Rumpel’s application. I find that Ms. Fulber has failed to establish that Rumpel is liable for the injuries from the fall and I must dismiss her claim.

[51]         Rumpel is entitled to its costs.