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OCCUPIERS' LIABILITY - Particular situations - Floors

Wednesday, May 02, 2018 @ 8:38 AM  

Lexis Advance® Quicklaw®
Appeal by defendant store and property manager from finding of liability for injuries plaintiff sustained in slip and fall accident. The plaintiff returned a small vacuum cleaner to the defendant store. As she approached the store holding the vacuum cleaner in both hands, another patron held the door open for her. She entered and stepped on a black mat. As she stepped from the mat to the tile floor, she slipped and fell, breaking her kneecap. It had been raining heavily earlier that morning, but the rain had reduced to a drizzle by the time the plaintiff arrived at the store. She did not see any debris or water on the floor before she slipped. However, after she fell, she noticed water on the floor and she became wet. An employee, who was the only one assigned to cleaning in the store that day, had done light cleaning at the store, but it was not known what she did. An expert tested the floor and concluded that it posed no risk of slipping either when dry or wet. The judge allowed the action. He concluded that the floor was wet where the plaintiff fell and that the wet floor was the cause of her fall. He found that there was no evidence that an employee of the property manager cleaned the floor that day or even inspected it, or, if the floor was cleaned, that it was inspected to ensure the cleaning was done properly. He also found that there was no evidence of a safety system to abate the risk of a fall or whether the cleaning system was adjusted to reflect the weather. He was not persuaded by the expert evidence as the expert tested the floor in ideal conditions and there were too many variables to conclude that the floor was inherently safe irrespective of the weather conditions, the wetness of the floor, the nature of the plaintiff's footwear or the presence or absence of grease or oil on the floor. The appellants appealed, arguing that the judge failed to require the plaintiff to prove that the wet floor created an unreasonable risk of harm before he considered the measures adopted by the defendants to make the premises safe.

HELD: Appeal dismissed. The trial judge conducted the inquiry required by s. 3(1) of the Occupiers' Liability Act. Once he determined that the wet floor was the cause of the plaintiff's fall, the remaining question was whether the defendants had taken reasonable care to prevent a fall on a wet floor. It was open to the trial judge to reject the expert evidence concerning the safety of the floor and to reject the defendant’s defence that their duties were discharged by their choice of flooring. The judge considered the evidence of the plaintiff's condition, her conduct and footwear. The suggestion that she fell because she was not keeping a proper lookout was speculative.

Tondat v. Hudson's Bay Co., [2018] O.J. No. 1603, Ontario Court of Appeal, G.J. Epstein, K.M. van Rensburg and D.M. Brown JJ.A., March 27, 2018. Digest No. TLD-April302018005