In Rankin (Rankin’s Garage and Sales) v. J.J., 2018 SCC 19, the Supreme Court of Canada clarified how it will interpret existing duties of care, in the context of a personal injury arising from the theft of a vehicle stored at a commercial garage, and the evidentiary requirements for establishing novel duties of care.read more
Case Law Highlights the Difficulties of Establishing Liability for Slip and Falls During Newfoundland and Labrador Winters
This newsletter will examine three court decisions that illustrate the challenge of proving liability for slip and fall incidents during Newfoundland and Labrador winters.
Ledez v. Health Care Corp. of St. John’s, 2008 NLTD 60
The Plaintiff, Ledez, a doctor employed by the Defendant hospital authority, slipped and fell while walking on a parking lot used by physicians. As he entered this parking area, he noticed that the pavement was slippery and, consequently, he walked cautiously. He nevertheless fell on what he described as a thick slab of ice near a construction area.
Ledez admitted that the hospital had “an appropriate plan in place for snow and ice removal” but he argued that “the plan was not adequately followed on the day in question”. To establish the latter, Ledez noted the existence of slippery conditions, and the absence of a “proper” record indicating “whether or not and when [the doctors’ parking lot] was cleared of snow and salted at or about the time of the fall”. He also suggested that the construction activities likely prevented proper clearing and salting of the area where he fell.
The court agreed that the record of winter maintenance activities lacked specificity, and that a more detailed log would have been “preferable and advantageous” for the hospital. Nevertheless, the court indicated that the absence of a detailed record of snow and ice control activities did not establish a prima facie case of negligence, nor did it place a reverse onus on the hospital.
As for the allegation that the hospital failed to adequately implement its regime, the court noted that the evidence tendered by Ledez required the court to “make certain conjectures related to the state of affairs rather than providing direct evidence establishing a breach of the requisite standard of care”.
While the parking area was slippery, the court was not satisfied that the hospital had “failed to meet its obligation to ensure that those using the area … were reasonably safe in doing so” [original emphasis]. There was an “extensive regime put in place for snow and ice removal”, and the “changing climatic conditions accounted for the slippery conditions” and “made snow clearing and de-icing challenging”. In and of itself, the presence of slippery conditions did not mean that the hospital was negligent. As a result, the claim was dismissed.
Hawkins v. Village Mall Shopping Centre (2006) Inc., 2015 NLTD(G) 59
The Plaintiff, Hawkins, slipped and fell while walking on the laneway of the parking lot of the Defendant’s shopping centre. According to the court, the incident occurred because of slippery conditions due to the presence of ice in the area of the fall. The key question was “whether the system in place for dealing with snow removal and ice control was adequate”.
There was evidence of the specific requirements contained in the snow and ice removal contract between the shopping centre and its contractor. The contractor had a log of the activities on the day of the incident, which showed that the parking lot had been salted three times that day. The fall occurred during the last of the salting sessions.
On the day of the incident, there was snow blowing off the roof of the shopping centre, and the presence of snow squalls. There were “more severe freezing conditions than normally controllable” with “refreezing taking place shortly after application of the salt”.
While the efforts undertaken that day were not effective to prevent the presence of ice, they were “as practical [a] response as should reasonably be expected” in the circumstances. In particular, the court rejected the suggestion that inspections of the large parking lot ought to have occurred by a pedestrian, and not by an individual in a truck. Such a requirement would be “costly, impractical and likely ineffective”. In the end, the court found no negligence and dismissed the action.
Smith v. 60144 Newfoundland and Labrador Inc., 2017 NLTD(G) 143
The Plaintiff, Smith, slipped and fell on the walkway of the Defendant’s car dealership. Smith was walking towards the rear parking lot where his vehicle had been parked. With his car in view, “he lifted his right foot to step onto the pavement, his left foot remaining on the walkway, when both of his feet came out from under him and he fell”.
The dealership’s winter maintenance system was carried out by two individuals: an employee from another business who cleared and salted the parking lot; and by Mackey, an employee of the dealership who was responsible for the walkway. Mackey “cleared the snow manually with a shovel and used a salt spreader for ice control”. This was done once in the morning with “touch ups” as needed. If there was snow during the day, the snow clearing would be repeated. Mackey did not keep a log of his activities, but testified that on the day of the incident, he followed his usual routine. Smith argued that the dealership had no documentation of the activities undertaken to monitor the premises, and that it failed to require checks at specific intervals throughout the day.
The court dismissed the claim. For one thing, Smith “failed to establish that he fell on ice or snow”, and he failed to establish the reason for his fall. Beyond that, while there was a greater responsibility to clear a walkway, as opposed to a parking lot, the dealership proved the existence of a reasonable winter maintenance system which had been implemented on the day of the incident. While a written log would have been preferable, the consistent evidence of the witnesses satisfactorily established the existence and the application of the regime.
A Summary of Key Principles:
These and other cases illustrate the following key principles:
- The duty of an occupier is to take such care as in all of the circumstances is reasonable to ensure that lawful visitors are reasonably safe.
- The fact that a slip and fall occurs does not create a presumption of negligence. The onus is upon the plaintiff to establish that the occupier fell below the standard of care. The plaintiff must identify some act or failure to act on the defendant’s part.
- Occupiers are not guarantors of the safety of those on their premises. The burden on an occupier is not an onerous one, and is tempered with an air of reality.
- The existence of slippery conditions does not necessarily establish a breach of the standard of care. The reasonableness of the defendant’s efforts is not judged by the results, but by the extent of the efforts themselves.
- While a detailed log of winter maintenance activities is advantageous for defending slip and fall claims, the existence of a proper regime can be established by other means, including the defendant’s witnesses.
- Plaintiffs face an uphill battle when they cannot identify the reason for their fall.