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:
 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…
 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.
 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.
 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.