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

Written by admin on . Posted in Occupier's liability claims.

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.

Gas Station Found Liable for Slip and Fall on Ice; $40,000 Non-Pecs for Dislocated Kneecap

Written by admin on . Posted in ICBC Knee Injury Cases, Occupier's liability claims, Uncategorized.

Reasons for judgement were released this week dealing with fault and damages arising from a slip and fall incident at a North Vancouver gas station.
In this week’s case (Foley v. Imperial Oil Limited) the Plaintiff, an insurance adjuster for ICBC, slipped and fell on ice located near a car wash at an Esso Station in North Vancouver.   He suffered various injuries, the most serious being a dislocated knee.  He claimed the Defendants were liable for his injuries and sued for damages.  The Defendants disagreed arguing that they took reasonable care to keep the area clear of ice.
Mr. Justice MacKenzie agreed with the Plaintiff and found the Defendant responsible for the incident.  The evidence showed that when cars left the car wash water would drip down and sometimes freeze causing ice.  The Court found that the Defendant did not take adequate steps to warn of this known hazard.  In finding the gas station at fault the Court reasoned as follows:

[69] The defendants maintained no regular patrol for ice, but left the frequency of patrol for ice to the employees. Mr. Morrow testified that when he did patrol, he occasionally found ice, and then he would apply fresh salt. So the presence of ice would move him to reapply salt. This indicates either that he was not salting enough, or the defendants were not sufficiently addressing the problem. Both Mr. Morrow and Mr. Christian knew that dripping water from cars would wash the salt away.

[70] In short, the washing away of salt by the water dripping from cars leaving the car wash bay, and then freezing, constituted an unusual hazard of which the defendants were aware, but the plaintiff was not. Mr. Morrow knew the ice was hard to see, particularly if it was clear, and covered by water dripping from cars. He saw the ice on which the plaintiff slipped and it was covered by water. Therefore, it was hard to see.

[71] The defendants did nothing to warn users of the car wash about the risk of ice. They could easily have put out the orange warning cones that conventionally alert people to risk, or posted readily visible signs warning of the risk of ice. The expense would have been minimal. They could also have improved the drainage to avoid the washing away of the salt, or closed the car wash, as they had done on a couple of occasions before when it was cold enough for ice to form at the known area of risk. The patrol for ice, and salting could have been more frequent.

[72] In MacLeod v. Yong, [1997] B.C.J. No. 2108 (S.C.) at para. 8, Mr. Justice Burnyeat listed a series of factors that are relevant in considering whether an occupier has fulfilled the duty imposed by s. 3 of the Occupiers Liability Act. 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.”

[73] In considering whether the defendants have breached their duty to take reasonable care to ensure the plaintiff would be reasonably safe on the premises, I must consider all the circumstances of the case, including: the slip and fall was reasonably foreseeable and the defendants were clearly aware of it; the efforts made by the defendants depended on the judgment of employees who were prone to human error and who were occupied with other duties; and it would have been easy and inexpensive for the defendants to put up a warning sign, or orange cones at the location they knew was particularly hazardous.

The Court went on to award the Plaintiff $40,000 for his injuries which included a dislocated knee cap.  In reaching this award Mr. Justice MacKenzie provided the following reasons:

[126]     The plaintiff’s most serious injury in the slip and fall was his dislocated right patella (kneecap). He also had a minor scrape on his head and strained wrists and abrasions that were bandaged at the hospital. He took nine days off work as the combined result of his knee and wrist injuries.

[127]     The dislocated kneecap caused the plaintiff excruciating pain. There was profuse swelling and a very large bruise. It was swollen and red for a few weeks or a month or more after the fall.

[128]     The plaintiff initially required crutches because he could not bear his weight. He also used a brace afterward, and tapered off his use of both the crutches and brace. The evidence as to how long he used both varies somewhat, but is simply a matter of inaccurate recording or memory, and not the plaintiff’s dishonesty.

[129]     The wrist pain lasted a month or two, and he had a very stiff neck with pain for a week or two…

[135] The knee pain, while gradually abating, had essentially plateaued by the spring of 2007. It was getting stronger and better, but he still felt pain and instability in the right knee in the spring of 2007. He saw his doctor in the spring and summer of 2007 and the doctor recommended he see a specialist, Dr. Forsyth, at the McGavin Clinic at UBC…

[140] In the summer of 2008, the plaintiff’s symptoms improved again and he noticed fewer symptoms. The pain ranged from nothing to 20 out of 100, or quite modest discomfort. However, knee stamina for walking and standing had not improved. Sitting for prolonged periods made his knee ache. He also noticed increased joint sounds in his knee, especially when climbing stairs. The plaintiff was forthright in admitting that he had some such sounds in both knees before the slip and fall, but after it, he noticed increased joint sounds in his right knee which he still notices…

[168]     The damages awarded in each case are specific to the particular facts. In this case, the plaintiff has suffered, and continues to suffer chronic pain and loss of enjoyment of life. His condition is likely to remain stable, although there is a risk that he may develop post-traumatic arthritis in the future, which could have further negative impact on his daily activities.

[169]     Based on my findings and upon reviewing the cases, I find an award of non-pecuniary damages of $40,000 is appropriate.