Slip and Fall Actions Dismissed for Failure to Show Breach of Duty26-Oct-17
By: Marco Baldasaro
While it often seems otherwise, occupiers are not strictly liable for injuries sustained by visitors at their premises. The duty of care codified by the Occupiers’ Liability Act requires occupiers to take reasonable steps to keep visitors safe. It does not require perfection. Two recent decisions illustrate this point.
In Reichert v Home Depot Canada Inc (“Reichert”) the Plaintiff sustained injuries when he slipped on snow outside a home improvement supply store in Calgary. According to the Plaintiff, the fall occurred when he lost his footing while traversing the parking lot. The Defendants (the occupier, Home Depot, and its snow removal company) sought summary judgment on the basis that they had not been negligent.
While the Defendants acknowledged that the premises had not been cleared at the time of the slip and fall, they noted that the snow removal company’s contract prohibited it from performing snow removal in the parking lot until two inches of snow had accumulated. Both Defendants asserted that that this clause was “industry standard”. The evidence before the Court was that the snow on which the Plaintiff slipped was less than an inch deep.
The Defendants also asserted that the timing of the snowfall precluded its removal from the parking lot until after the slip and fall had occurred. The Court accepted that the snowfall began around 7:00 am, once the parking lot had already started to fill up with cars.
The Court granted summary judgment in favour of the Defendants and dismissed the action. In doing so, the Court concluded that the Defendants acted reasonably even though they failed to remove the snow on which the Plaintiff fell. The Court noted that the size of the parking lot necessitated the use of vehicle mounted snow removal equipment and accepted the Defendants’ assertion that the timing of the snowfall prevented its safe removal from the parking lot until the home improvement supply store had closed for the day. The Court therefore concluded that the Plaintiff’s injuries had not been caused by the Defendants’ failure to take reasonable care.
In Hamilton v Ontario Corporation #2000533 o/a Toronto Community Housing Corporation (“Hamilton”) the Plaintiff slipped and fell on a vinyl floor in the hallway outside her apartment. Though the Statement of Claim alleged that the slip and fall was caused by the Defendant’s failure to keep the vinyl floor reasonably safe, it failed to disclose a description of the alleged hazard. During Questioning, the Plaintiff was unable to explain what had caused her to slip. Instead, she asserted that she detected some dirt on her clothing as she rested on the floor after the fall and recounted a history of complaints concerning the general cleanliness and upkeep of the building. The Defendant applied to the Court for summary judgment on the basis that the Plaintiff had failed to prove that a hazard had caused the loss.
In contesting the Defendants’ application, the Plaintiff made three common arguments. First, the Plaintiff, asserted that the fact that the corridor floor was slippery was sufficient to establish that the corridor was not reasonably safe. She provided meteorological evidence of rainfall on the date of the accident to substantiate her assertion. The Court rejected this assertion and ruled that the meteorological evidence was insufficient to conclude that precipitation caused a slippery condition in the hallway. Significantly, there was no objective evidence to demonstrate that any wetness had been tracked into the hallway outside of the her apartment.
Second, she asked the Court to infer the existence of a hazard on the basis of alleged defects in the Defendant’s maintenance program. Again the Court rejected this assertion, noting that there was no evidence of a general lack of maintenance in the hallway to which her slip and fall could be causally connected.
Third, she argued that the Court should conclude that an unsafe condition caused the slip and fall on the basis that she was a credible witness. The Court disagreed and ruled that the cause of the slip and fall must be based on facts and not personal opinion. As there was no reliable evidence of any unsafe condition in the hallway, the Court refused to find that the Defendant had acted unreasonably and dismissed the Plaintiff’s action.
Though Plaintiffs often assert otherwise, an occupier is not obliged to guarantee visitor safety. The onus remains on the Plaintiff to demonstrate a breach of the occupier’s duty of care. The cases discussed in this article illustrate that where the Plaintiff is unable to pinpoint some act or failure on the part of the occupier that caused the Plaintiff’s injury, the Plaintiff’s claim is bound to fail.
Significantly, both Reichert and Hamilton were decided in the context of a summary judgment application. In each case, the occupiers sought to have the Plaintiff’s claim dismissed without the necessity of trial on the basis that it was bound to fail. In each case, the occupiers were successful. Increasingly, Courts in Canada appear willing to utilize summary judgment to resolve disputes prior to trial. Reichert and Hamilton demonstrate that even slip and fall actions may be suitable for summary judgment where there is no evidence to suggest that the occupier was negligent.