A Ontario Occupiers’ Liability Act, the owner has a legal 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.” While this does not mean a property owner is automatically liable for any accident on their land, it does mean that the condition of the property–particularly as it relates to the safety of pedestrians who need to interact with vehicular traffic–is a relevant issue in any personal injury claim brought before the Ontario courts.
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Kushnir v. Macari: Experts Dispute Whether Absence of Formal Crosswalk Contributed to Accident
For example, an Ontario Superior Court judge recently dismissed a motion for summary judgment brought by the owner and operator of a shopping centre in Kingston in a premises liability claim arising from a pedestrian accident. The plaintiff, a woman in her late 70s, was struck by a vehicle driven by another defendant. At the time of the accident, the plaintiff was crossing an access road that was part of the shopping centre itself.
Here is a more detailed explanation of what happened. The corporate co-defendants maintain the Kingston Centre, which is located to the south of Princess Street in Kingston. An internal access road runs north-south from Princess Street to Bath Road. On the east side of the access road is a bank. On the west side is a Loblaws supermarket. There is a sidewalk running alongside the access road on the east side only.
The plaintiff had been eating at a restaurant on the other side of Princess Street across from Kingston Centre. She crossed Princess Street and walked down the sidewalk on the east side of the access road. She then crossed the access road to get to Loblaws.
The point where the plaintiff crossed was not a marked crosswalk. Instead, she crossed at the entrance road to Loblaws itself, which was several dozen metres to the south of the designated crosswalk, which was at the intersection of the access road and Princess Street. As the crossed, the driver co-defendant made a left turn onto the access road, hitting the plaintiff while she was still in the middle of the street. The impact fractured the plaintiff’s pelvis and spine and caused a serious head injury.
Before the Superior Court, the plaintiff and the corporate co-defendants each presented expert evidence regarding the overall safety of the Kingston Centre parking lot. The plaintiff’s expert said that despite the lack of a marked crosswalk, there was nevertheless a “desire line” near the accident scene where pedestrians routinely crossed the access road to get to Loblaws. Given this, the expert said the defendants should have taken certain “remedial measures” to ensure the safety of pedestrians in the area, such as placing barriers to “restrict pedestrian traffic from crossing the access driveway.” Alternatively, the defendants should have formally recognized the existence of the desire line and installed a “properly signed and marked pedestrian crossing” near the Loblaws entrance road.
Not surprisingly, the defence’s expert saw things differently. The defence expert said barriers would not be sufficient “to prevent an able-bodied pedestrian from crossing,” and that placing an additional pedestrian crosswalk so near to the one on Princess Street was “well below any industry guidance or motorist expectations.” And in any event, the defence expert said there was no evidence that the condition of the access road at the time of the accident “may have contributed to the collision.”
Judge Decides It’s Up to the Jury
As mentioned above, the corporate defendants moved for summary judgment. Basically, they argued there was no way that a “reasonable jury” could find they violated their duty of care under the Occupiers’ Liability Act. Justice Hurley of the Ontario Superior Court of Justice dismissed the motion in an October 15, 2018, opinion and ordered the case to a jury trial, which is scheduled to begin in three months’ time.
Justice Hurley said the plaintiff presented a credible argument that the corporate defendants failed to “take such care as in all the circumstances of the case was reasonable to see that [she] was reasonably safe while on the defendants’ property.” In other words, a jury could determine that it was “foreseeable” that customers at Kingston Centre would cross the access road on foot, and that “[o]ver time, as happened in this case, a specific area might become a popular crossing spot and, if it is in close proximity to a vehicle intersection,” would create an increased risk of pedestrian accidents. The jury could also find the defendants liable for failing to address this increased risk by not taking preemptive action, such as installing a formal crosswalk or placing additional barriers along the access road, as suggested by the plaintiff’s expert witness.
Again, it’s important to note that Justice Hurley did not rule this was the case. He merely said the evidence was sufficient to warrant a jury trial. Ultimately, he said that was the “proper forum” to resolve the conflicting expert reports and other disputed evidence.
Contact Preszler Law If You Have Been Injured in a Pedestrian Accident
Pedestrian accident cases like this one are rarely simple. They often involve complex factual and legal questions. That is why you should contact a qualified Toronto personal injury lawyer if you are injured in any type of accident.