City of Salmon Arm found liable in slip-and-fall on sidewalk

In reasons for judgment released today, the court in Binette v. Salmon Arm (City), 2017 BCSC 302, found the City of Salmon Arm liable in a slip-and-fall case where the plaintiff was injured after tripping on a piece of metal sticking out of a city sidewalk.  The piece of metal was what remained of a crosswalk sign that had been severed from its base at some point in the past.  A city employee had previously discovered the severed sign in the area, but was not able to determine where it had come from.  The employee decided to await the spring snow melt and then revisit the general area once the sidewalks were clear of snow, in order to determine where the sign had come from and repair it.  In finding the city liable, Mr. Justice G.P. Weatherill said as follows:

[21]         The Policy, created by the City, required it to use its “best efforts”, all things considered, having regard to the City’s resource constraints and the hazardous nature of the Sign, to remediate the problem.

[22]         The evidence satisfies me that the City used its best efforts around the time the Sign was discovered by Mr. Graham in the snow in a resident’s yard in the general area of the Sidewalk to determine where the Sign came from. The evidence also satisfies me that Mr. Graham’s efforts at that time were reasonable and that despite those efforts, he was unable to locate where the sign came from.

[23]         However, Mr. Graham then misunderstood the Policy. He says that when he could not locate where the Sign came from, “[a]s per the City’s standard practice, and because this was not a stop sign or white cross walk sign”, he stored the Sign until the location for the Sign could be determined in the spring when the snow melted.

[24]         The City knew that the Sign was missing from its intended location and, I am satisfied, would or should have known from looking at the end of the recovered Telespar Post that it had been sheared off from the Base located somewhere on a sidewalk near a crosswalk.

[25]         The photographs taken by Mr. Nelson the day after the Fall show very jagged and hazardous ends sticking up from the Base. The photographs also make it clear that the snow had melted from the area some time before the Fall. There is no snow in sight.

[26]         I conclude that the end of the Telespar Post found by Mr. Graham months earlier probably had matching jagged edges that should have alerted Mr. Graham and the City that the Base was still attached to a sidewalk likely in the general area of where the Sign was found. If using “best efforts” was the standard, this knowledge on Mr. Graham’s part should have moved the matter of locating and remediating the Sign and Base to the priority of immediacy as soon as the snow had melted. At a minimum, “best efforts” must include “some efforts”. Instead, the Sign remained in storage until after the City was notified of the Fall, despite the snow having been melted from the Sidewalk.

[27]         Given Mr. Graham’s knowledge of the Sign and what I infer he knew of the Telespar Post’s condition, I find that he did not follow the Policy by using his “best efforts” to locate and replace the Sign. Indeed, the evidence is that after he placed the Sign in storage, he made no effort until the City received notice of the Fall on March 18, 2013.

[28]         The plaintiff has the burden of proving all of the elements of the negligence claim on a balance of probabilities. Weighing the evidence, I conclude that the plaintiff has met that burden. I find that the City fell short in the implementation of its Policy and the plaintiff suffered harm as a result

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/03/2017BCSC0302.htm

Court dismisses Slip-and-Fall claim against Superstore, says "no evidence" fall was caused by moisture

In reasons for judgment released today, the court in Hanes v. Loblaws Inc., 2017 BCSC 102, dismissed the plaintiff’s claim against Superstore in a slip-and-fall case.  The plaintiff in Hanes slipped and fell just inside the entrance of a Superstore in Kelowna, BC, injuring her right knee and lower back.  The incident occurred in early December, and there was snow and slush on the ground that had been tracked into the store by customers.  At the time of the fall there was a warning cone in the entrance and an employee was mopping up the floor.  Additionally, the plaintiff had just come from church and was wearing two-inch high heel shoes with leather soles.  In dismissing the plaintiff’s claim, Madam Justice Russell wrote as follows:

[131]     In the circumstances of this case, it is clear that the defendant Loblaws had in place a system to guard against any dangerous substance remaining on the floor’s surface...

[139]     There is simply no evidence that Ms. Hanes’ fall was caused by moisture on the floor, whether that was a pool of water, or just general moisture causing the surface to become unreasonably slippery.

...

[143]     It is my view that Ms. Hanes’ shoes were already wet when she entered the store due both to her crossing the snowy church parking lot, and residual moisture on the concrete outside the store.

[144]     With the wet leather soles and high heels she was wearing, it would have been very easy for her to skid a little on her right high heel and to turn her ankle, causing her to fall. However, assigning any cause to her fall is itself speculative.

[145]     In my view, her fall was truly an accident and liability cannot be found against Superstore.

[146]     I also cannot find fault with the quality of the surface of the floor in the Superstore, and I find that the program in place to keep the floor as clean and dry as possible in the circumstances met a reasonable standard of safety.

[148]     Ms. Hanes has not established that Loblaws is liable for her fall and injuries...

[149]     The plaintiff’s action is dismissed with costs to the defendant.

The text of the full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/01/2017BCSC0102.htm

 

Court finds restaurant liable in slip-and-fall case saying "no satisfactory efforts" made to keep floor clean

In reasons for judgment published this week, the court in Robinson v. 1390709 Alberta Ltd., 2016 BCSC 2459, found the defendant liable in a slip and fall case.  The defendant in Robinson operated a fast-food style restaurant called the “Chopped Leaf” which specialized in made-to-order salads.  The plaintiff claimed she had slipped and fallen in the restaurant after stepping on a “slimy” and “thicker than liquid” substance left on the floor.  In finding the restaurant negligent, Mr. Justice Gaul wrote as follows:

[20]         Ms. Robinson says there is direct evidence that a substance that was "slimy and thicker than a liquid" was on the floor of the restaurant and that this substance was the cause of her slip and fall. While she cannot say with precision what the substance was, that is, she cannot say whether it was a lettuce leaf, a slice of kiwi, or something else, she can say it was distinctly noticeable to her when she stepped on it.

[21]         The defendant argues it is insufficient for Ms. Robinson to say there was "something" on the floor that caused her to fall. According to the defendant, the plaintiff is asking this court to impermissibly speculate what it was that caused her to fall…

[22]         … In Ms. Robinson's case she can clearly identify that the substance or item was noticeably different than water and that it had the distinct consistency of a food item. In my opinion that is not speculation or theorizing on her part. It is credible and reliable evidence that there was a foreign item or substance on the floor of the restaurant that created a potential hazard for its customers…

[23]         The evidence before me points to the fact that the colour and texture of the Chopped Leaf’s floor made it difficult to see items or substances that may have been dropped on it…

[25]         I find no employee of the Chopped Leaf made any satisfactory effort to determine the state of the restaurant’s floor during the time Ms. Robinson and Ms. Horgan were present in the restaurant. In my opinion, they should have. Had they done so, they would have noticed the substance on the floor, likely a food item, that should not have been there and realized it created the risk of a slip and fall accident, like the one that happened to Ms. Robinson.

[43]         In any event, I find there was a substance, likely an item of food, on the floor of the Chopped Leaf that should not have been there and that it created a hazard when Ms. Robinson went to leave the restaurant. She unwittingly stepped on the substance which resulted in her slipping and falling to the floor. The restaurant employees present at the time should have observed the substance and taken steps to clean the floor before Ms. Robinson and Ms. Horgan got up to leave the restaurant. They did not and the result was Ms. Robinson’s accident.

[45]         For all the forgoing reasons…I find the defendant is 100 percent liable for the accident that occurred to Ms. Robinson on 30 November 2012.


The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/16/24/2016BCSC2459.htm