Tag: Slip and Fall Accidents

Produce Vendor Found Liable For Slip and Fall Injury Involving Dropped Grape


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a produce vendor liable for injuries sustained when a shopper slipped and fell on a dropped grape.
In today’s case (Davis v. Kin’s Farm Market) the 75 year Plaintiff was shopping in Lynn Valley Mall in North Vancouver.  As he walked “past the fruit and vegetable display tables located outside of Kin’s Market, he slipped and fell on a green grape“.
The grape was just outside of Kin’s Market in an area that was “encroaching somewhat into the marbled tiles forming the mall pedestrian corridor“.   The Plaintiff sued the owner of the Mall and the produce store.
The Defendants argued that the Plaintiff was at fault for his injuries and that they were not responsible because they had a reasonable system to deal with hazards on the floor.  However, this was contradicted by a witness who gave evidence that “several hours after the ambulance took (the Plaintiff) away”  there were “more grapes on the marble tiles immediately outside the store”  and that after bringing these grapes to the attention to the employee in charge of Kin’s Market “this employee took no steps to clean up the grapes“.
Madam Justice Bruce went on to find both Defendants liable for the Plaintiff’s injuries.  Specifically the Court reasoned as follows:

[39] In addition to having no reasonable system of inspection and maintenance in place to address spills from the bins and display tables outside the store, I find that the employees were not complying with the standards set by their employer on the day of the accident. Ms. Janda’s evidence tends to show that the employees of Kin’s Market were lax in regard to the cleanliness of the areas surrounding the bins. While evidence of a failure to comply with the cleaning policies well prior to the date of the accident cannot be used to infer such a failure on the date of the accident, in this case there is evidence that just hours after Mr. Davis’ fall there were more grapes on the marble tiles adjacent to the bins displayed by Kin’s Market. This evidence suggests that the employees of Kin’s Market had rather poor powers of observation. Moreover, the fact that on two occasions on June 5, 2005, employees of Kin’s Market took no steps to clean up fallen grapes after the spills were brought to their attention strongly suggests that they took no responsibility for any produce that landed beyond the brick tiles.

[40] Lastly, Kin’s Market argues that even if it failed to meet the standard of care owed as an occupier, the fact that the Owner met this standard removes any responsibility they may have for the accident. I am unable to accept this argument. Where there are two occupiers of premises, each of them owes a duty of care to persons invited to enter the premises. The fact that the Owner may rebut a prima facie breach of the Act does not obviate the necessity for Kin’s Market to also satisfy the two pronged test articulated by the Court of Appeal inAtkins. Permitting grapes to remain on the floor as a hazard is negligent absent proof that a reasonable system of maintenance and inspection was in place and being followed on the day of the accident. Kin’s Market has failed to satisfy this onus and it is irrelevant whether the Owner has led evidence that shows it met the required standard of care.

The Court went on to find that the Plaintiff was not at fault for falling reasoning as follows:

[60] Kin’s Market argues that Mr. Davis had an obligation to keep a proper look out for his own safety and to be aware of his surroundings: Gervais v. Do, 2000 BCSC 1271, [2000] B.C.J. No. 1732. Kin’s Market points to Mr. Davis’ admission that his attention was not directed to where he was walking before he fell; rather, he was looking toward the Shoppers Drug Mart. He was familiar with the mall and could have avoided the fall had he been paying attention to the floor where he was walking…

[62] In my view, it is not reasonable to expect Mr. Davis to be staring at his feet as he walked through the mall towards the Shoppers Drug Mart. Had he positioned his head in a downward direction to detect possible hazards on the floor, Mr. Davis may have stepped over the grapes in his path; however, he may also have run into another mall patron possibly causing damage to himself and the other person. It is also understandable that Mr. Davis would not be cognizant of the risks associated with walking in the common area of the mall adjacent to Kin’s Market, particularly as he was three to four feet from the display tables. He was not inside the store where he may have been alerted to the possibility of produce that had fallen to the floor. Lastly, I find Mr. Davis’ circumstances are similar to that found by the Court of Appeal in Coulson. The tenants in the mall design their displays to attract customers’ eyes. They do not encourage patrons to keep their eyes on the floor ahead of their feet. As Bauman J. (as he then was) said in Dufty v. Great Pacific Industries Inc., 2000 BCSC 1474, [2000] B.C.J. No. 1988 at para. 44:

[44]      As to the issue of contributory negligence, it has been said many times, most recently by Justice Burnyeat in Coleman v. Yen Hoy Ent. et al, 2000 BCSC 276 [In Chambers], that while there is a duty on the plaintiff to be aware of her surroundings, it is not the case that she is required to “glue her eyes to the ground.”

Be Nice, Clear Your Ice…Fault for Slip and Fall Accidents


When I was growing up in Toronto I remember public service commercials often being played in the wintertime with the slogan “Be Nice, Clear Your Ice“.  Due to the temperate climate of Victoria, BC I have not heard a similar public service announcement for years.  That being said, regardless of where in Canada you live if you are responsible for a roadway/driveway/sidewalk/parking-lot that is covered in ice/snow reasonable steps should be taken to remove it.  Not only is removing it from your property the sensible thing to do, failing to do so can lead to a successful lawsuit and reasons for judgement were released by the BC Supreme Court, Vancouver Registry, demonstrating this.
In today’s case (O’Leary v. Rupert) the Plaintiff rented a basement suite in the Defendants home.  When returning from work one day the Plaintiff parked her car in the driveway and attempted to walk up the driveway to the stairs of her basement suite.  It was dark outside and none of the lights were on.  Before reaching the stairs the Plaintiff slipped and fell.   The Plaintiff sued for damages and succeeded.  In finding the Defendants liable Mr. Justice Voith found that they did not take reasonable steps to keep the driveway clear of hazards.  Specifically the Court summarized and applied the law as follows:

[38] The obligation of the Ruperts under the Tenancy Agreement was to “maintain the residential property in a reasonable state of …. decoration and repair.” Conversely, the obligation of Ms. O’Leary under s. 10 of the Tenancy Agreement was to “maintain reasonable health, cleanliness and sanitary standards.” In saying this, I recognize that as a matter of practice Mrs. O’Leary swept and shovelled the stairs and pathway leading to her suite.

[39] Second, as I have said, it is common ground that the Ruperts maintained and shovelled the whole of their driveway without ever suggesting to Mrs. O’Leary that this obligation properly fell to her. Liability may be imposed on a party who has voluntarily undertaken to do something they were not otherwise obligated to do: see Goodwin v. Goodwin, 2007 BCCA 81, 64 B.C.L.R. (4th) 280, at para. 26. Where that voluntary task is performed negligently and causes foreseeable harm to a plaintiff, liability may arise. Once the Ruperts undertook to maintain and shovel the whole of their driveway, regardless of whether they were under a legal obligation to do so, they had a duty not to perform this task negligently.

Analysis

[40] In MacLeod, Mr. Justice Burnyeat listed a series of factors, and the legal authorities where they are referred to, that are relevant in considering whether an occupier has fulfilled the duty imposed by s. 3 of the OLA. These factors include “whether an unusual danger was present, whether a warning had been provided to the plaintiff, the ease or difficulty and the expense with which the unusual danger could have been remedied, and any prior record of safe usage of the premises by others or by the plaintiff.”

[41] In this case, the application of most of these factors, together with the factors I have referred to earlier that emanate from Zavaglia, support the conclusion that the defendants breached the duty of care they owed to the plaintiff. The driveway of the Rupert home was sloped. I have found that it was routinely slippery and that it was icy on the night of January 12, 2007. It was dark on that evening and it was routinely unlit. These factors, in combination, gave rise to a situation that was unsafe or hazardous. In addition, the defendants knew that Mrs. O’Leary was required to cross over parts of the driveway, after exiting her car, to access her suite. Her use of the areas in question and the hazards it presented were thus foreseeable.

[42] In saying this, I recognize that we live in a relatively northern climate and that our winter weather conditions often create an environment that is inherently precarious. In Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420 at p. 439, the court said “Ice is a natural hazard of Canadian winters. It can form quickly and unexpectedly. Although it is an expected hazard it is one that can never be completely prevented.”

[43] Still further, I accept that the standard or test is one of “reasonableness and not perfection”: Fournier v. Grebenc, 2003 NBQB 221, [2003] N.B.R. (2d) (Supp.) No. 28 at para. 31. Finally, I recognize that this case deals with a residential home rather than an apartment building, as in Neilson v. Bear, [1999] B.C.J. No. 86 (S.C.), or a shopping centre, as in Murphy v. Interprovincial Shopping Centres Ltd., 2004 NLSCTD 210, 241 Nfld. & P.E.I.R. 316, or a parking lot, as in Parmar v. Imperial Parking Ltd., [1977] B.C.J. No. 486 (S.C.), where the standards and procedures established by the landlord in response to winter conditions are designed to accommodate greater volumes of personal traffic. Accordingly, they are likely to be more rigorous or exacting.

[44] Nevertheless, the conditions that existed at the Rupert home were unnecessarily unsafe. I say unnecessarily unsafe because with little effort and at modest expense the conditions on the driveway could have been much improved. The simple installation of lighting that worked either on a timer or on a motion detector would have provided Mrs. O’Leary with the illumination necessary to better see where she was walking. Both devices are inexpensive. Both would have addressed the inconsistency with which the Ruperts turned on their outside lights or the occasions where, as in the case of the evening when Mrs. O’Leary fell, they had not yet arrived home from work to turn on the lights.

[45] Similarly, the use of salt or some other traction agent would have addressed the icy condition of the driveway. Though the Ruperts were diligent about shovelling their driveway, that step, without more, was not enough. Once again this step would have been relatively inexpensive and would not have been time consuming.

[46] I am also satisfied that the failure of the defendants to take these measures to address the icy and precarious condition of the driveway caused Mrs. O’Leary to fall.

[47] It is noteworthy that the Ruperts have, since Mrs. O’Leary’s accident, both taped the switch for the outside lights open and begun to apply salt to their driveway following a snowfall. It is clear that post-accident conduct cannot be viewed as an admission of negligence: Anderson v. Maple Ridge (District) (1992), 71 B.C.L.R. (2d) 68, 17 B.C.A.C. 172 (C.A.) at p. 75. Nevertheless, in Anderson, Wood J.A., as he then was, concluded that moving a stop sign after an accident was relevant to the question of whether it was difficult to see prior to the accident. Here the steps taken by the defendants post-accident are relevant to whether the driveway was dark and whether it remained slippery or icy after being shovelled.

[48] Similarly, post-accident conduct can be used as an indication of the ease with which a risk might have been avoided: Niblock v. Pac. Nat .Exhibition. (1981), 30 B.C.L.R. 20 (S.C.) at p. 25.

Mr. Justice Voith awarded the Plaintiff $25,000 for non-pecuniary damages.  Her most serious injury was a “second degree sprain of her ankle” which continued to impede the Plaintiff in some recreational activities some two years later.  There are not too many cases out there dealing with ankle sprains from the BC Supreme Court and this precedent may prove useful for others with similar injuries.

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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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