BC Supreme Court – Nothing Negligent About Kids Playing "Grounders"

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

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

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

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


(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

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

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.

Chairlift Negligence Claim Dismissed Due To Waiver


Adding to this site’s archived cases addressing waivers of liability in sporting injury claims, reasons for judgment were released this week by the BC Supreme Court, Kamloops Registry, addressing the effect of a waiver following a ski-lift accident.
In this week’s case (Morgan v. Sun Peaks Resort Corporation) the Plaintiff was “preparing to load onto a chair lift at the ski resort owned by the defendant Sun Peaks Resort Corporation when she fell.  The approaching chair lift was not stopped in time and she was run over by it“.  Prior to this incident the Plaintiff signed a waiver of liability which is commonplace at ski resorts.  She sued for damages alleging negligence and the Defendant applied to have the claim dismissed based on the strenght of the waiver.   Madam Justice Griffin upheld the waiver and dismissed the lawsuit.  In doing so the Court provided the following reasons:
[30]         The Release describes the defendant and its directors, officers, employees, agents, contractors, and representatives as “THE OPERATORS”.  In the release section of the Release, it states that in consideration of the Operators accepting the application for a season pass and permitting the use of their facilities and property, including use of the lifts, the party signing agrees as follows:
1.         TO WAIVE ANY AND ALL CLAIMS that I have or may in the future have against THE OPERATORS AND THE PROVINCE, and its directors, officers, employees, agents, guides, instructors, independent contractors, sub-contractors, representatives, sponsors, successors and assigns (all of whom are hereinafter collectively referred to as “THE RELEASEES” ), and TO RELEASE THE RELEASEES from any and all liability for an loss, damage, expense or injury including death that I may suffer, or that my next of kin may suffer resulting from either my participation in any recreational activities in the controlled recreational area, or my presence around the recreational activities in the controlled recreation are, DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS LIABILITY ACT R.S.B.C. 1996, c. 337,  ON THE PART OF THE RELEASEES, AND ALSO INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF ANY RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATION AREA REFERRED TO ABOVE.
[31]         As noted, the Release refers to the releasor’s “participation in any recreational activities in the controlled recreational area” or presence around those activities.  At the top of the Release, the term “recreational activities in the controlled recreational area” is defined as follows:
DEFINITION: In this agreement, the term “recreational activities in the controlled recreational area” shall include all activities or involvement in any way connected or associated with lift accessed & non-lift accessed activities within the controlled recreational area; including but not limited to skiing, snowboarding, telemark skiing, cross country skiing, golfing, hiking, sight seeing or mountain biking throughout the controlled recreation area or with orientation, instruction, training or guiding given by THE OPERATORS.
[32]         Furthermore, the Release provided that the releasor assumed certain risks.  In a section headed “Assumption of Risks”, the Release provided:
ASSUMPTION OF RISKS: I am aware that recreational activities in the controlled recreational area involves many risks, dangers and hazards including, but not limited to; boarding, riding or disembarking lifts; changing weather conditions; exposed rock, earth, or other natural or man made objects; trees, tree wells, tree stumps and forest dead fall; changes or variations in the terrain which may create blind spots or areas of reduced visibility; changes or variations in the surface or sub-surface; streams, creeks; collision with lift towers, fences, equipment, vehicles or structures; collision with other participants, spectators or bystanders; negligence of other participants, spectators or bystanders; and NEGLIGENCE ON THE PART OF THE OPERATOR INCLUDING THE FAILURE ON THE PART OF THE OPERATORS AND THE PROVINCE OR ITS STAFF TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATIONAL AREA.  I am also aware that the risks dangers and hazards referred to above exist throughout the controlled recreational area and that many are unmarked.
I AM AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATIONAL AREA AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND LOSS RESULTING THEREFROM.
[33]         On its face, the Release is very broad.
[34]         The Release specifically identified the risks of boarding, riding, or disembarking the lifts. It excluded liability resulting from the releasor’s participation in “recreational activities in the controlled recreational area” which included activities or involvement in any way connected or associated with lift accessed and non-lift accessed activities the Release covered.  It also excluded liability for the negligence of the Operator and its staff, including in safeguarding the releasor from the risks, dangers and hazards of recreational activities in the controlled recreational area, which as defined, included activities associated with lift accessed activities.

[55]         Coming back to the central allegation here, that the employee failed to press the stop button in time, the plaintiff has advanced no argument that would explain how that type of alleged employee failure could be considered to amount to mechanical breakdown or equipment failure.  There is no suggestion of any evidence that there was mechanical breakdown or failure of equipment. 
[56]         I conclude that the scope of the Release is sufficiently broad to encompass the plaintiff’s claim against the defendant based on alleged negligence of the chairlift operator in delaying in pressing the stop button immediately upon seeing the plaintiff fall.   I am satisfied that this is the only evidence of possible negligence that has been put forth by the plaintiff, and that this conduct does not fit within the exclusion clause in the Release.  Given my conclusion that such conduct would fall within the scope of the Release, the defendant must succeed in this application. 
[57]         The plaintiff’s claim is therefore dismissed.

Faded Warning Sign Leads to Liability for Trip and Fall

UPDATE – June 3, 2014 – the BC Court of Appeal overturned the below decision and dismissed the claim finding the faded warning sign, if negligent, was not causative of the fall
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Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, addressing the adequacy of a warning sign in an occupier’s liability lawsuit.
In last week’s case (Simmons v. Yeager Properties Inc.) the Defendant owned a bakery in Chemainus, BC.  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 tie with the words ‘watch‘ and ‘step‘ becoming ‘quite faded and difficult to see‘.
The Plaintiff tripped and fell in this area and sued for damages.  Although the Plaintiff was found mostly at fault for her own injuries, the Defendant was held 25% responsible for allowing the sign to fade.  In so finding Madam Justice Fisher provided the following reasons:
[37]         In my opinion, the presence of white paint demarcating the patio step was not a sufficient warning, as the patio step was quite different in nature from the both the front and back stairs, and it was also sloping along its edge so that its height varied from two to four inches. In addition, with a patio table and chairs in front of it, the entire painted edge may not have been visible to customers approaching from the back stairs as the plaintiff did. As the defendants must have considered, it was necessary to specifically alert customers to the presence of this step with warning signs. Here, the warning sign that was most visible to the plaintiff was ineffective due to wear and tear.
[38]         The plaintiff says that the measures taken by the defendants after this incident, which were easily done and inexpensive, show that the previous measures were insufficient to make the premises reasonably safe. As with evidence of prior safe use, evidence of what is done after the fact is also a factor to consider in assessing whether the area at the time of the incident was reasonably safe. After the fact conduct is not an admission of negligence, but it may establish that measures were taken which converted an unsafe area into a reasonably safe one, and it may also establish the ease or difficulty with which a risk may have been avoided: see Cahoon at para. 21; O’Leary v Rupert, 2010 BCSC 240 at paras. 47-48.
[39]         In re-painting the edges of all stairs and the patio step in yellow paint, and replacing the red, black and white warning signs with yellow and black signs, the defendants enhanced the safety of the premises. However, other than replacing the faded warning sign, I do not consider that these changes show the previous measures to have been insufficient to alert customers to the change in level at the patio step.
[40]         I find that the ineffective warning sign is evidence of a prima facie breach of the Occupiers Liability Act. In these circumstances, the defendants may refute the breach by leading evidence that they had put into place a reasonable system of inspection and maintenance that was being followed at the time of the accident: Newsham at para. 131, citing Atkins v. Jim Pattison Industries Ltd. (1998), 61 BCLR (3d) 183; and Davis v Kin’s Farm Market (Lynn Valley), 2010 BCSC 677.
[41]         Ms. Laughlin’s evidence was that the outdoor sign needed to be replaced every six to eight months due to fading. She did not have a record of when she replaced the sign but she was at the bakery almost every day and would prepare a new sign when needed. Given how faded the sign was on the date of this incident, I do not consider her inspection and maintenance to be sufficient. It was obvious that the outdoor sign needed to be replaced.
[42]         Accordingly, I find that the plaintiff has proved on a balance of probabilities that by failing to maintain the outdoor warning sign, the defendants failed to take reasonable care to ensure the exterior area leading to the entrance of the bakery was reasonably safe.

Court of Appeal Discusses Standard of Care In Road Construction Liability Cases


Reasons for judgement were released this week by the BC Court of Appeal upholding a trial verdict finding the City of Abbotsford and a private contractor 80% responsible for a single vehicle collision in a construction zone.
In this week’s case (Van Tent v. Abborsford) the plaintiff was riding his motorcycle through a construction zone when he drifted over the fogline to his right.  There was a two inch drop off in the pavement level due to on-going construction.  The Plaintiff lost control and was injured.
The Plaintiff was found partially at fault for not driving safely, however, the Defendants bore 80% of the blame for “failing to adequately mark the uneven pavement“.
The trial judge found that the Ministry of Transportation’s Traffic Control Manual for Work on Roadways was informative of the standard of care.   The Defendants “failed to adhere to several of those standards“.  In finding that this was an appropriate standard of care to hold the Defendants to the BC Court of Appeal provided the following reasons:
[11]         Sections 138 and 139 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, require traffic control devices be erected on a highway when there is construction. Those sections read:
Work in progress
138  On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected indicating that persons or equipment are working on the highway.
Erection of speed sign
139  On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected to limit the rate of speed of vehicles or to restrict the manner in which the vehicles are to proceed on the highway.
[12]         The Ministry of Transportation’s Traffic Control Manual for Work on Roadways [the “Manual”] contains prescribed standards for designing and implementing traffic control plans for construction zones on British Columbia highways.  Section 1.1 states that the examples provided within the Manual are “generally the minimum required”…
 
[45]         As already noted, the trial judge held at para. 93 of her reasons that s. 138 of the Motor Vehicle Act and the Manual informed the standard of care expected of a reasonably prudent contractor in the circumstances.  (Although not specifically mentioned, s. 139 is of relevance as well.)  She found in fact that the appellant contractor fell below this standard in a number of ways, beginning at para. 71:
[71]      In this case, the standard of care is greatly informed, although not dictated, by the collection of uniform traffic control standards detailed in the Manual.  By virtue of performing construction work on a provincial highway, the defendants were required, at a minimum, to abide by the principles and guidelines it contained.  The applicable standards endorsed in the Manual accord with common sense and the conduct expected of a prudent contractor in the circumstances in relation to the task of ensuring the safety of the users of the road and work crews during times of construction and maintenance.
[72]      In my view, the defendants failed to adhere to several of those minimal standards.  With respect to many of them, Mr. Stewart variously seemed not to know of them or appreciate their application or the complexities of the planning work that was required of him in creating and implementing an appropriate traffic control plan.
[46]         The errors identified by the appellants are findings of fact made by the trial judge.  The appellants have not identified any palpable or overriding errors that would warrant intervention by this Court.  Those findings of fact are amply supported by the evidence.  I conclude that the trial judge did not err in describing the standard of care, or in concluding that it was breached by the appellants.

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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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