On September 23, 2011, while out with friends at a local pub, a woman fell when she missed a single step which had recently been added to the back patio of the pub. As a result of the fall, she suffered a fracture of the navicular bone in her right foot – an injury that has caused her continuous pain since the accident. In October 2015, she was diagnosed with mild to moderate post-traumatic osteoarthritis in her right foot. The accident victim sued the owners of the pub for negligence in not providing sufficient warning to patrons of the bar about the newly constructed step. The claimant’s counsel argued that the owners failed in their duty of care as per the Occupier’s Liability Act, to ensure that everyone entering onto their premises are kept reasonably safe.
The Occupier’s Liability Act
Occupier’s Liability refers to an area of tort law that deals with the duty of care owed by those who occupy a property, whether through ownership or by leasing, to anyone who visits the property. Liability for damages may arise from an accident and any associated injury caused by a defective or dangerous condition on the premises.
The Ontario Occupier’s Liability Act specifies that an occupier owes a duty of care to reasonably ensure that persons entering a premises are safe while on the premises. An occupier is defined as “a person who is in physical possession of premises” or “a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises”. This means that an occupier may be an owner, renter or property manager. A premises includes not only land and buildings, but also, bodies of water, boats, trailers and parked railway cars.
When someone is hurt on a property, a determination of occupier’s liability considers whether the occupier breached their duty of care to the plaintiff. The onus on the plaintiff is to prove that: 1) the defendant created or allowed an unsafe condition and thus breached their duty of care and; 2) that their injury was suffered as a direct result of the unsafe condition on the premises.
Determination of Liability in Kania v 1618278 Ontario Inc. c.o.b. as Heart and Crown Irish Pubs
A mechanical engineer who testified on behalf of the plaintiff, noted that single steps are more difficult to see than areas with larger elevation changes, when one is approaching from the top. Thus, it is very important to mark the step with contrasting colours, improve lighting and/or erect signs or other visual cues, such as a handrail, to ensure that the step is clearly visible to individuals. The defendant did not do any of these things.
The judge accepted the engineer as a credible and expert witness with respect to premises compliance with the Ontario Building Code, including the construction of walkways and stairs. The judge found the photos he had taken at the location of the accident, to be particularly informative and determinative because the angle of the picture showed the exact location where the plaintiff was approaching the step just before she fell. The photograph substantiated that there was no discernable change in elevation where the step exists. In other words, the upper level of the patio blended seamlessly with the lower level. For this reason, the judge ruled that the single step posed a danger to the plaintiff and other visitors and that this danger should have been foreseeable to the defendant.
The judge concluded that the defendant breached its duty of care to keep the patio reasonably safe for the plaintiff. The judge accepted the expert opinion that a change of elevation in a walking surface of a single step is dangerous and also his evidence that the defendant provided no visible cues to the danger of the single step; such as a warning sign, colour contrasting grip tape or handrails. The judge noted that not only was the creation of a single step a foreseeable risk due to the slight and inconspicuous change in elevation, but also, the defendants took no steps to warn patrons of the hazard.
The defendant pub owner argued that the plaintiff contributed to her fall by failing to take reasonable care for her own safety. It was alleged that she was looking at her friend rather than paying attention to her surroundings and where she was going in the moments leading up to the fall. The plaintiff’s testimony disagreed with the suggestion that she was distracted when she fell; rather, she claimed that after making eye contact with and waving at her friend, she took two more steps before her fall. However, the plaintiff admitted that she failed to look down in the last moment, which the pub owner argued would have prevented her from falling.
The judge disagreed with the defendant and noted that the plaintiff had no reason to anticipate a step, as it had not been there before. The judge cited a ruling in Baker v. York, where Justice Lack stated “mere forgetfulness or want of attention, failure to look for some source of danger that is not present to the mind of the person injured is not contributory negligence”. The trial judge added that there was no warning or visual cue as to the change of elevation that would have alerted the plaintiff or drawn her attention to the hazard. Therefore, the judge in this case declined to assign any responsibility or contributory negligence on behalf of the plaintiff.
The plaintiff was awarded total damages of $212,659. This amount includes $100,000 in general damages awarded for pain and suffering and for her loss of enjoyment in life, due in great part to her diminished ability to perform many daily functions and her ongoing pain. She was also awarded $5,609 for special damages for medical expenses including physiotherapy; $50,000 for loss of earning capacity; 35,900 for cost of future care, housekeeping and maintenance; and an amount for prejudgement interest.
Serious injuries resulting from property owner negligence are not uncommon. Falls are a leading cause of personal injury for Canadians and in many cases, they result from a preventable and unsafe condition on a property. Spills, clutter and debris, icy pavement, poorly lit walkways and stairwells, uneven walking surfaces and poorly secured or loose carpeting are some of the most frequent causes of a slip/trip and fall. Businesses and commercial establishments, municipalities and even homeowners can be found liable if their negligence in repairing (or creating) an unsafe condition results in serious injury for a person coming onto the property.
If you were seriously injured on a premises, contact an experienced property liability lawyer at Rastin & Associates. We have successfully represented many clients who were seriously hurt due to a hazard or poorly maintained structure on a property. In an initial consultation, we can assess the specifics of your case and offer frank advice on the strength of your claim and the best way forward.
You can call us at 844-RASTIN1 or email Rastinlaw.com