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NEGLIGENCE - Duty and standard of care - Duty of care - Contributory negligence - Apportionment of liability - Relation to causation

Wednesday, January 03, 2018 @ 8:42 AM  

Lexis Advance® Quicklaw®
Appeal by Janandee Management Inc. (Janandee) from a judgment awarding damages to Parent and Hendrix. Cross-appeal by Upright Signs from a portion of the costs award. Janandee was a condo developer that advertised downtown Toronto using portable, A-frame signs on city sidewalks. Upright Signs was contracted by Janandee to install the signs. Parent and her husband, Hendrix, were walking on a sidewalk on a windy day when one of Janandee’s signs struck Parent in the face. Parent was knocked to the ground. She sustained a broken nose, fractured orbit and traumatic brain injury. She was awarded $2,900,170 in damages, plus interest and costs. The jury found that Janandee and Upright Signs were both negligent and apportioned 94% liability to Janandee 94% and 6% liability to Upright Signs. Janandee and Upright Signs were ordered to pay costs to Parent and Hendrix of $727,290 and Janandee was ordered to pay costs to Upright Signs of $210,000.

HELD: Appeal and cross-appeal dismissed. The judge did not err in finding that Janandee owed a duty of care to sidewalk users like Parent when it placed signs on the sidewalks. It was reasonably foreseeable that Janandee’s carelessness might cause damage to a person using a sidewalk. While the judge went too far in explaining to the jury why a duty of care existed, his comments did not mislead or influence the jury in coming to its verdict. He should have limited his comments to simply stating that he had concluded a duty of care existed. Although his use of the words “caused or contributed” in asking the jury to apportion liability between Janandee and Upright Signs was problematic, the judge did not invite the jury to apportion based on degrees of causation. The jury was directed to consider the specific negligent acts of the defendants. The fact that the apportionment was unusual was not a reason to interfere with it. A reference by the judge to Janandee’s defence that the incident amounted to an “Act of God” did not materially impact the jury’s conclusions. Alleged errors by the judge in assessing costs did not rise to the level of seriousness required to justify Upright Signs’ appeal from the costs award. Viewed in the context of the overall costs awards and the ultimate apportionment of liability by the jury, the costs awarded against Upright Signs was fair.

Parent v. Janandee Management Inc., [2017] O.J. No. 6204, Ontario Court of Appeal, G.T. Trotter, D. Paciocco and I.V.B. Nordheimer JJ.A., November 29, 2017. Digest No. TLD-January12018006