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
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:
 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.
 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.
 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.
 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.
 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.
 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.