Injury Claim from Tenant Walking Into a Refrigerator Dismissed

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing an injury claim arising after a tenant walked into a refrigerator.

In today’s case (Van Hartevelt v. Oita Investments (BC) Ltd.) the Plaintiff was a tenant in an apartment complex owned by the Defendant.  A refrigerator was left in the hallway for several days.  The Plaintiff, who was aware the refrigerator was present, walked into it and allegedly injured his knee.  He sued for damages but the claim was dismissed finding that he was the author of his own misfortune.

In dismissing the claim Mr Justice Funt provided the following reasons:

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Occupier Not Liable for “Sudden, Random, and Apparently Unprecedented Act of Violence” By Customer

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a lawsuit following a customer on customer assault at a commercial establishment.

In today’s case (Tanaka v. London Drugs Limited) the Plaintiff was shopping at London Drugs when another customer suddenly and unexpectedly punched the Plaintiff in the face knocking him unconscious.  The assailant remained unidentified.  The Plaintiff argued London Drugs should be vicariously liable for the assault either based on the principles of Negligence of Occupier’s Liability legislation.  In dismissing the claim and finding there should be no vicarious liability in the face of a “sudden, random, and apparently unprecedented act of violence” Madam Justice Horsman provided the following reasons:

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Slip and Fall Claim Succeeds After Plaintiff Injured on Wet Boardwalk

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, addressing fault and damages for a fall a Plaintiff sustained while walking on a wet boardwalk.

In today’s case (Owens v. Steveston Waterfront Properties Inc.) the Plaintiff fell and broke her right kneecap in an incident described as follows:

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Claim Dismissed Involving Broken Armrest Leading to Hip Fracture

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, dismissing a personal injury lawsuit alleging a breach of the Occupier’s Liability Act.
In today’s case (Hamilton v. The Owners, Strata Plan VIS3782) the Plaintiff broke his hip after falling while leaning on an armrest of a bench owned by the Defendants.  The armrest “broke away and the plaintiff says that unexpected loss of support put him off balance. His body twisted to the left and he fell to the ground.”.
The Plaintiff sued alleging negligence and a breach of the Occupier’s Liability Act.  The Court found that the armrest was indeed defective from natural wear but the Defendants were not liable as they did not know about this and applying a reasonable standard of inspection likely would not have known about it.  In dismissing the claim Mr. Justice Smith provided the following reasons:

[52]         In this case, there is evidence that this type of bench, when exposed to the elements on a long-term basis, does deteriorate over time and that the bench broke at the very spot where the deterioration is most likely to occur. That is evidence from which it can be inferred, on the balance of probabilities, that there was some defect or deterioration in the wood that caused the armrest to break off when the plaintiff put his weight on it. I find that the plaintiff has satisfied the first branch of the test referred to in Thomas.

[53]         On the second branch of that test, the question is whether the presence of that defect amounted to an objectively unreasonable risk of harm. That depends on whether the Strata knew or reasonably should have known about it, and whether a reasonable owner, knowing about the defect, would have repaired or removed the bench before the date of the plaintiff’s fall. The standard is one of reasonableness, not perfection.

[54]         The evidence is clear that the Strata Council had received no complaints about the bench and was not aware of any defect. The evidence of Ms. Lennard is that benches were inspected regularly to ensure they were secure and in good condition. That inspection was undoubtedly more cursory or less exacting than what the plaintiff’s experts suggest, but there is no evidence that residents of a strata who volunteer to serve on a garden committee had or should have had the same knowledge as experts in wood products.

[55]         Dr. Nichols said the purpose of the inspection he recommends is to “simulate the strains or stresses applied to the wood structure during use.” Mr. Moffatt said, on discovery, that the benches were used “extensively and intensively during the summer months.” As counsel for the Strata notes, the “ordinary stresses and strains” were not just simulated, but were actually being applied on a regular basis.

[56]         I find that the standard of inspection put forward by the plaintiff is one of perfection rather than reasonableness. But even if that standard is applicable, the plaintiff’s expert, Mr. Anderson’s opinion was that the detailed inspection be done only at least once a year. The logical time to perform an annual inspection would have been in the spring—before the period of most intensive use and immediately after the season of greatest exposure to rain. There is no evidence from which it can be inferred that the defect that caused the plaintiff’s fall in December 2015 would have been present or detectable on an inspection six to eight months earlier.

Occupier's Liability Claim Dismissed Where Plaintiff Did Not Know Why He Fell Down Stairs

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing an occupier’s liability lawsuit involving a plaintiff who was injured after falling down stairs.
In the recent case (Goddard v. Bayside Property Services Ltd.) the plaintiff “fell on a wooden exterior staircase outside a fire exit” at the rear of a property owned by the Defendant.  The Plaintiff did not know why he fell and did not produce any evidence documenting the stairs being a hazard at the time of the fall.  In dismissing the claim via a summary trial application Mr. Justice Ball provided the following reasons:

[17]         In this case, the plaintiff advanced a theory about what caused his fall, but the Court cannot speculate in respect to a theory; the cause of the fall has not been established on the evidence called by the plaintiff.

[18]         The standard of care under the Act and at common law for negligence is the same: it is to protect others from an objectively unreasonable risk of harm. Whether a risk is reasonable or unreasonable is a question of fact and must be determined based on the circumstances of the case: Agar v. Weber, 2014 BCCA 297 at para. 30.

[19]         The existence of stairs by itself is not an unreasonable risk of harm, but a risk that persons in our society face on a daily basis. The existence of stairs is not therefore something from which the defendants needed to protect the plaintiff: Trinetti v. Hunter, 2005 BCCA 549 at para. 11; Delgado v. Wong, 2004 BCSC 1199 at para. 25.

[20]         The fact of the plaintiff’s fall does not establish that the occupier failed to take reasonable care to ensure the plaintiff was reasonably safe. The plaintiff’s uncontroverted evidence, which was accepted by the defendants, is that he does not know what caused him to fall. If that is the case, he cannot establish the defendants caused the fall and he fails then to establish either negligence or breach of a duty under the Act.

[21]         Further, given the detailed description of the inspection and maintenance of the staircase involved by the staff and owners of the strata, the defendants have met the requisite standard of care under both the Act and common law negligence.

[22]         While the Court heard argument concerning allegations the plaintiff was negligent and submissions relating to quantum of damages, I do not regard those matters as necessary for the purpose of giving judgment.

[23]         In the circumstances of this case, the plaintiff has clearly not met the onus which he bears, and as a result the action falls to be dismissed.

BC Supreme Court – Property Owners Under No Legal Duty To Clear Ice From Sidewalks

Reasons for judgment were published this week by the BC Supreme Court, Rossland Registry, dismissing a slip and fall lawsuit against a property owner on the basis that they have no duty to clear ice and snow from sidewalks outside their property.
In today’s case (Scheck v. Parkdale Place Housing Society) the Plaintiff slipped and fell on a public sidewalk which separated Angus Street in Summerland, BC from a senior’s housing facility operated by the defendant Parkdale Place Housing Society.
The Plaintiff sued both the City of Summerland and the Housing Society who owned the business adjacent to the sidewalk.  In dismissing the claim against the Society the Court concluded there is not common law duty for property owners to clear municipal sidewalks running adjacent to their property.  In reaching this decision Mr. Justice Johnson provided the following reasons:

[45]         As to whether Parkdale owed a duty at common law, I accept the reasoning of the Ontario Court of Appeal in Bongiardina at para. 19:

The question then becomes: is there a common law duty on the owner of the property to clear snow and ice from public sidewalks adjacent to the property? In my view, the answer to this question must be “No”. Although the “neighbour” principle from Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), has been expanded in recent years to cover a myriad of new relationships, it would stretch it too far if it was applied in the circumstances of this case. A homeowner has a duty to ensure that his or her own property is maintained in a reasonable condition so that persons entering the property are not injured. If the homeowner complies with this duty, he or she should be free from liability for injuries arising from failure to maintain municipally owned streets and sidewalks. The snow and ice accumulating on public sidewalks and the potholes on the street in front of the house are the legal responsibility of the municipality, not the adjacent property owner.

[46]         I do so with some reluctance as this seems contrary to the prior decision of this court in Reidy v. Kamloops Hotel Ltd. (1997), 41 B.C.L.R. (3d) 338 (S.C.). There, a plaintiff fell on an icy municipal sidewalk outside the defendant hotel. The court found that the hotel was not an occupier of the sidewalk at para. 6, then went on to consider whether the hotel was liable at common law. In concluding that the hotel was liable to the pedestrian, the court applied the “unusual danger” test from Indermaur v. Dames (1866), L.R. 1 C.P. 274 (Eng. C.P.), and referred to the Supreme Court of Canada decision in Campbell v. Royal Bank (1963), [1964] S.C.R. 85, 43 D.L.R. (2d) 341, which considered a test to determine if an unusual danger existed.

[47]         What the court in Reidy did not refer to, as it was apparently not cited, were the decisions in Weiss and Tutinka. With respect, it seems to me that the decision in Reidy was per incuriamas a result of not having the advantage of those two decisions, and should not be followed.

[48]         I am able to determine the question put by Parkdale’s application, as it does not depend on the condition of the sidewalk. I conclude that Parkdale owed no duty to Ms. Scheck with respect to Summerland’s sidewalk and dismiss her claims against Parkdale.

Court Rules Home Owners Have No Duty of Care When Tenants Dog Injures Others

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the legal liability of a home owner whose tenant’s pet injures another.
In today’s case (Barlow v. Waterson) the Plaintiff alleged that a dog owned by the Defendant was off leash and caused her injury.  In the course of the lawsuit the Plaintiff sought to add the homeowner of the residence where the Defendant was residing as an additional Defendant.  The court rejected this application finding that even if all the allegations the Plaintiff was advancing were true the Defendant home owner owed no duty of care in the circumstances.  In dismissing the application Master Wilson provided the following reasons:

[13]         In this case, Mr. Seifi is not an occupier of the premises, having yielded control when he rented them to Ms. Waterson. Ms. Waterson was not Mr. Seifi’s agent as was found in Hindley. Mr. Seifi does not own the dog and therefore does not exercise control over the dog. He is not an occupier of Prospect Avenue, which presumably belongs to the municipality. He had no duty to control the dog owned by the defendant Waterson and had no ability or obligation to control or to limit activities on the property, let alone activities on the road adjacent to the property. To the extent there may be a bylaw regarding off leash dogs, that would be Ms. Waterson’s concern.

[14]         As for the allegation regarding adequate fencing in the proposed amended notice of civil claim, I agree with counsel for Mr. Seifi that there is no allegation that the dog here even escaped. In fact, the plaintiff’s evidence provided by way of her daughter’s email suggests that Ms. Waterson would routinely permit the dog to roam freely. This would suggest a failure to supervise or control the dog by Ms. Waterson as opposed to a failure to provide adequate fencing, a duty that would have been owed to Ms. Waterson but was not alleged by her in her Response to Civil Claim.

[15]         In the circumstances, although the threshold is a low one, I am not satisfied that Mr. Seifi owed any duty of care in this case to the plaintiff, and the application is dismissed.

Slip and Fall Lawsuit Dismissed Due to No Evidence of Moisture

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

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

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.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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