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Occupiers' Liability for Unmarked Hazards

A relatively recent case from the Ontario Superior Court had some interesting comments about occupiers' liability in the context of a slip and fall.

The case in question is Kania v. 1618278 Ontario Inc. (2015 ONSC 7042). The facts are relatively straight forward. The Plaintiff attended the Heart & Crown Pub in the Ottawa Market.

While walking along the outdoor patio (and conversing with someone not on the patio) the Plaintiff failed to notice a "step-down" in the elevation of the patio. The Plaintiff took a step, expecting her foot to come down on the level patio, instead, due to the elevation change, there was nothing there and she fell to the ground injured herself.

The Court had a few interesting comments about liability that should assist counsel in litigating slip and fall cases. Consider the following:

At para 43 the Court states:

"The fact that numerous other visitors may have negotiated the step without incident or injury offers no defence. In my view, that fact does not entitle the defendant to escape the consequences of its breach of duty to the plaintiff."

Insurance adjusters and defence counsel are quick to say that a certain spot has never had any previous problems as a defence. The Court in Kania makes it clear if there is a breach of duty, this does not matter.

At para 53 the Court states:

"Absent any visual cue which the plaintiff either ignored or failed to observe, I conclude the defendant has not proved on a balance of probabilities that the plaintiff failed to take reasonable care for her own safety."

and at para 51, the Court quotes positively from another case:

"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."

In Kania, defence counsel tried to argue the Plaintiff was contributorily negligent and therefore partially responsible for her damages. The Plaintiff was walking and conversing with someone not on the patio. However, since the Defendant did not put up any warnings or visual cues about the "step-down", it could not be concluded the Plaintiff was negligent. A momentary lapse in judgment, in the absence of sufficient warning, is not negligence on behalf of the Plaintiff.

This case sends a strong message to occupiers that they must take positive steps to sufficiently mark hazards on their property. Failure to do so and the Court will not look favourably upon traditional common-law defences available to occupiers.

Remember, everyone's situation is unique. The blogs posted on this site are informational. They are not intended to be taken as legal advice for your situation. It is always a good idea to seek professional legal advice before making any decisions related to your particular case.

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