SLIPS, TRIPS AND FALLS A WORD FROM THE DEFENCE. By: Daniel I. Reisler and Mouna B. Hanna REISLER FRANKLIN LLP Toronto, Ontario

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1 SLIPS, TRIPS AND FALLS A WORD FROM THE DEFENCE By: Daniel I. Reisler and Mouna B. Hanna REISLER FRANKLIN LLP Toronto, Ontario So you have been retained to defend against a slip/trip and fall claim. Where do you begin? What do you need to know from your clients? This paper will walk you through some general considerations to take into account when defending a slip/trip and fall claim brought pursuant to the Occupiers Liability Act, starting with a brief overview of the law and the relationship between owners and independent contractors. The paper will also highlight some questions you should consider asking when assessing your client s exposure to liability, as well as some points keep in mind to determine the extent of the Plaintiff s contributory negligence for their injuries. Finally, the paper will conclude by offering suggestions on conducting an effective Examination for Discovery in a slip/trip and fall claim. Where to Start: Occupiers Liability Act The duty of an occupier is stated at section 3(1) of the Occupiers Liability Act and details the following: Occupiers duty 3(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises. Idem (2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on the premises. An occupier includes more than just the owner of the premises. The definition of an occupier captures third party contractors as well: Occupier includes, 1

2 (a) A person who in physical possession of premises, or (b) 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, despite the fact that there is more than one occupier of the same premises; Where an independent contractor (like a snow removal company) is involved, you should be familiar with section 6(1), which provides for the following: Liability where independent contractor 6(1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken. The Plaintiff may bear some contributory negligence for their injuries as well, and section 9(3) of the Occupiers Liability Act makes applicable the provisions of the Negligence Act: Application of Negligence Act 9(3) The Negligence Act applies with respect to causes of action to which this Act applies. Section 3 of the Negligence Act covers contributory negligence: Plaintiff guilty of contributory negligence 3. In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively. 2

3 Owners vs. Independent Contractors Needless to say, it is important to speak with your client early on in the litigation process to determine whether it had retained an independent contractor (ie. a snow removal company) or a property maintenance company. What you may even discover is that your property owner client had hired a property maintenance company, who then subcontracted the winter maintenance to a snow removal company. Where the Plaintiff has not named any of the independent contractors as Defendants, you will want to consider issuing a third party claim. Keep in mind that a Defendant has two years from the date on which it is served with the Statement of Claim to issue a third party claim for contribution and indemnity. 1 Where a property owner has retained the services of an independent contractor, and there is an agreement or a contract in place between the two entities, you will likely find provisions dealing with insurance coverage and indemnification. Generally speaking, the parties will agree that the independent contractor will indemnify and hold harmless the owner from all damages, losses and costs incurred by the owner and caused by the wrongful or negligent actions or omissions of the independent contractor. The parties may also agree that the independent contractor is to acquire liability insurance and name the owner as an additional insured on the policy. In situations where the independent contractor fails to name the owner as an additional insured on the policy, a Court may nevertheless order that the independent contractor assume the defence of the property owner. 2 Another option for the property owner is to claim against the independent contractor for contribution and indemnity for any and all amounts paid to the Plaintiff on the basis of a breach of contract. If you are acting for a landlord who left everything to an independent contractor, your client can avoid liability if it acted reasonably in entrusting the working to an independent contractor and if your client took steps to reasonably satisfy itself that the independent contractor was 1 Limitations Act, 2002, c. 24, Sched. B, s See Cadillac Fairview v. Jamesway Construction, 2011 ONSC 2633 where the independent contractor was required (pursuant to the agreement in place between the two parties) to obtain a CGL policy naming the property owner as an insured but failed to do so. 3

4 competent and that the work was properly done. The sooner you determine what systems your client had in place at the time of the slip/trip and fall, you sooner you can assess whether your client bears any liability. Some questions you will want to ask your client are as follows: Did your client conduct research about the independent contractor prior to retaining them? What sort of due diligence was performed? Does your client have copies of the contractor s certifications or licenses? What did your client do to satisfy itself that it could rely on the contractor? Was there a contract in place with the independent contractor? Did the contract leave snow removal and maintenance to the discretion of the contractor, or was there a requirement that the landlord advise when maintenance was required? Did your client inspect the contractor s work? How often did your client attend the premises? Did your client have any invoices for the purchase of salt or sand? Did your client keep salt or sand on the premises? If you are acting for an independent subcontractor, you will want to determine the following: What service was your client required to perform pursuant to the maintenance contract in place? Did your client perform those services according to the terms of the contract? Did your client take on additional maintenance activities, above the requirements under the contract? Did your client keep any maintenance logs or record? Did they track the work they performed? How? o Note that the law does not require a contractor to maintain records, however if your client kept records, even better! Was your client to perform the services at the behest of the owner or at their own discretion? Did your client track the weather changes? How? 4

5 Essentially, what a Court will be looking for is whether the owner/occupier had a reasonable system in place to ensure people will be reasonably safe and whether that system was functioning properly. Regardless of whether an independent is involved or not, a key element for the defence is that the standard is one of reasonableness, not perfection. 3 This is particularly important when you are dealing with egregious weather conditions quite familiar to Canada. There are many cases that recognize that ice is a natural hazard of Canadian winters, and an expected hazard that can never be completely prevented. 4 3 In Bogoroch v. Toronto (City), [1991] O.J (Gen. Div.), the Court held that the presence of snow and ice on sidewalks in Canada is a common occurrence in the month of February the occupier is not an insurer required at all times to keep his premises absolutely free of snow and ice but rather the standard of care required is that the occupier take reasonable steps to keep his premises safe in the circumstances. 4 Brown v. British Columbia (Minister of Highways), 1994 CanLII 121 SCC, 1 S.C.R. 420 at page

6 Is a Municipal Sidewalk Involved? Sometimes you will run into a situation where the Plaintiff has slipped/tripped and fell on a municipal sidewalk. Often, the Plaintiff will name the municipality and the adjacent landowner. As a general rule, the maintenance of a municipally owned sidewalk is the responsibility of the municipality and liability for a slip/trip and fall will not flow to the adjacent landowner. Like many general rules, there are two exceptions: liability may flow to the adjacent landowner (1) where the adjacent landowner assumes control over the sidewalk (ie. a store owner inviting customers to attend a sidewalk sale ); and (2) where a nuisance flows onto the sidewalk from the adjacent property (ie. when water flows from an adjacent property, freezes, and causes ice accumulation). 5 With respect to the first exception, defence counsel ought to be aware that even where adjacent landowners, like store owners, take it upon themselves to remove snow and ice from the sidewalks located in front of their property, that will not be sufficient to make the adjacent landowner an occupier for the purposes of the Occupier s Liability Act. 6 Should the Plaintiff be Pursuing Accident Benefits? Defence counsel should also be aware of situations where a Plaintiff had slipped and fell while disembarking from a vehicle, or shortly after exiting the vehicle. Cases where the incident in which the use or operation of an automobile directly causes an impairment, the Plaintiff will be entitled to statutory accident benefits. Both parking and disembarkation in the presence of snow and ice in winter in Ontario is an ordinary and usual use or operation of a motor vehicle. 7 As one can imagine, these cases are very fact specific, with many turning whether the use or operation of the vehicle directly caused the injuries. 8 5 See Bongiardina et al v. York (Regional Municipality), 2000 CanLii 5408 (ONCA) and Peterson v. Windsor (City), 2006 CanLII See Baker v. Perth East Township, [2009] O.J. 793 and Graham v. 7 Eleven Canada Inc., [2003] O.J. No See Wawanesa Mutual Insurance Company and Webb, (FSCO Appeal Order P ) where the insured had parked her vehicle, physically exited it, closed the car door, locked it, put her keys in her purse, walked up the side of the car, crossed in front of the car without incident and had proceeded to an access point a foot ahead of the front bumper of the car, when she fell. (page 13-14). On appeal, the Director s Delegate Blackman found that the use or operation of the vehicle led to the insured s injuries, but did not directly cause the injuries. (page 17). 8 Be on the lookout for situations where a Plaintiff has slipped and fell while walking back to their vehicle from a pay and display machine or a parking meter, or situations where a Plaintiff fell while checking for a fire hydrant, or parking signs. 6

7 The Plaintiff s Contributory Negligence One of the strongest opportunities for the defence to reduce the amount of damages in a slip/trip and fall claim is to explore the extent of the Plaintiff s contributory negligence for their own injuries. Some points you will want to consider are the following: Did the Plaintiff have difficulty traversing the sidewalk but continued anyway? 9 Did the Plaintiff fail to keep a proper look out for wintery conditions? 10 Did the Plaintiff fail to take reasonable care for their own safety, having regard to the condition of the surface on which they walking? 11 What was the Plaintiff wearing at the time of the accident? Was the Plaintiff wearing improper footwear? Did they take pictures of the footwear? o At the Examination for Discovery, ask for a description of the footwear and whether the Plaintiff still has the footwear in their possession. If so, ask that they be preserved until trial. Did the Plaintiff wear prescription glasses or contacts? Was their prescription current? Did they take any medication (prescription or otherwise)? Did they suffer from vertigo or dizziness? Was the Plaintiff accident prone? Have they had slip and falls in the past? 9 In Levy v. Brampton (City), 2005 O.J. No. 2487, the Plaintiff claimed damages against the City of Brampton and the Dufferin- Peele Catholic School Board, the adjacent landowners. The Plaintiff s claim was ultimately dismissed, but J.M. Spence J. noted that the Plaintiff should be regarded as having been contributorily negligent as to 20% of her damages (para 34). 10 In Coulson v. Hamilton (City), [2008] O.J. No. 4977, the Plaintiff claimed damages the City of Hamilton and Effort Trust Company, the adjacent landowner. The Plaintiff s claim was dismissed, however C.S. Glithero J. found that the Plaintiff was 50% contributorily negligent: As the "black ice" upon which the plaintiff is alleged to have slipped and fallen was equally there to be as easily seen by the plaintiff as it is claimed it ought to have been seen by the defendant, I would find the plaintiff 50% contributorily negligent. As she testified that the road and sidewalk appeared wet, and given the time of year, a pedestrian has, in my opinion, an obligation to keep a reasonable watch for wintery conditions and to take reasonable care for her own safety. (para 61). Similarly, in Cooney v. Kingston (City), 2005 CanLII (ONSC), the Court held that the Plaintiff was 50% contributorily negligent, indicating specifically that just as the defendant is aware that freeze/thaw cycles exist in this area at this time of year, citizens are also well aware of hazardous conditions caused by snow and ice and the need to take extra precautions for their own safety. (para 43). More recently, the Court in Lopez v. Toronto (City), 2013 ONSC 848 also found the Plaintiff to be 50% contributorily negligent where the Plaintiff reasonably ought to have seen the patch of ice. The fact he did not do so shows that he was not keeping a proper lookout. (para 98). 11 In Litwinenko v Beaver Lumber Co, [2008] OJ No 2133 (Div Crt), the Plaintiff tripped and fell in a plaza on a hazardous ramp that she historically avoided because she knew of the problem with the ramp. At trial, the Plaintiff was found to be 50% contributorily negligent, which was reduced on appeal to 15%: such knowledge should have caused the Appellant to be on a careful lookout at all times. Hers, however, was a monetary lapse of attention. 7

8 Was the Plaintiff carrying anything in their hands or on their back? Was the item heavy? Was the Plaintiff walking their dog? Was the Plaintiff in a rush to get somewhere? Was the Plaintiff texting or talking on their cell phone at the time? You re Up: Time for Examinations for Discovery Now that you have done some digging into what your clients did to ensure that people are reasonably safe while on their premises, it is time to prepare for Examinations for Discovery. Particularly if you think your case is going to trial, you should develop a plan of action, keeping some key points in mind: Be polite consider who will be reading the transcript if your case goes to trial. Ask short, simple questions designed to produce short, simple answers. Be alert to the fact that you cannot cross examine a witness at trial with long questions or long answers. Understand that at trial, you will have to ask the witness the same question you asked them at Discovery. Avoid engaging in conversations with Plaintiff s counsel on the record. Be alert to good answers and learn to move on quickly. You are not trying to learn everything there is to know about the case. You are trying to tie the witness down to an answer that either limits their claim or exposes them to impeachment. Our clients, whose interests it is our duty to serve, want efficient, cost effective resolution of their litigation. Having said that, the best litigators have always accomplished more with less. An Examination for Discovery is a perfect example, and a perfect opportunity for improvement. Here are some more tips on conducting an effective Examination for Discovery in a slip/trip and fall claim: 8

9 If you have extensive documentary production before oral discovery, read it, then put it aside. So much time is wasted at an Examination for Discovery going over documents that are self explanatory or, worse still, inculpatory without explanation. Know when to leave an answer, or even a whole area of discussion alone. Instead of inviting the Plaintiff to list all of their subjective complaints, determine the objective evidence: ask the Plaintiff when they returned to work, to driving, to playing golf, to going to church, to attending the gym, to taking out the garbage etc. Do not worry that you have not asked all the right questions. If you left something out, simply send a letter to Plaintiff s counsel after the Examination for Discovery with your questions and ask that the Plaintiff provide the answers in writing. 9