Establishing Causation in a Slip-and-Fall Accident

Slip-and-fall accidents can occur for any number of reasons. Many of these reasons may be tied to some negligent act or omission on the part of a property owner. For example, if a shopping center fails to repair a known pothole in its parking lot, an injured person could sue for damages. The same goes for a host of other hazardous conditions, such as slippery floors in areas accessible to customers or a cracked sidewalk in front of a store.

At the same time, it is important to understand that a property owner is not necessarily responsible for every accident that takes place on its premises. The Ontario Occupiers’ Liability Act only requires owners exercise “reasonable” care under the circumstances. As with any personal injury claim, the burden is on the victim to prove the defendant’s negligent maintenance of the property caused his or her injuries.

Case Study: Cannito v. Madison Properties Inc.

Here is an example of a case in which the plaintiff could not meet that burden. Cannito v. Madison Properties Inc.involved a 2012 trip-and-fall accident in the parking lot of a popular shopping centre here in Toronto. The defendant owned the shopping centre in question.

The plaintiff, a woman in her early 60s, was a patron who visited her bank, which was located in the shopping centre. A covered sidewalk ran alongside the retail stores. Directly across from the sidewalk was the parking lot. There was a marked pedestrian crosswalk in front of the bank that led to the parking lot. There were also two speed bumps.

On the day in question, the plaintiff exited the bank and “walked a little east on the sidewalk in front and then she began to cross the road looking both ways for any east-west traffic.” Then, without warning she suddenly tripped and fell onto the ground, sustaining injuries to her chest, wrist, and knee. The plaintiff later testified she was “scared, embarrassed and in pain.”

She went back inside the bank. The plaintiff did not report the accident at this time. A bank employee offered to call the plaintiff an ambulance, but she declined. After a few minutes, the plaintiff decided to drive home on her own.

Two weeks after the accident, the plaintiff returned to the shopping centre with her son-in-law. They examined the area where the accident occurred. The son-in-law took photographs. At this point, the plaintiff noticed what appeared to be a “missing piece” in one of the speed bumps. Although the plaintiff initially said she did not know what caused her fall, she now believed she tripped over the speed bump due to this missing piece.

On this theory, the plaintiff sued the defendant for damages in Ontario Superior Court. The case was heard in early October 2018 by Justice Alfred J. O’Marra. On October 25, Justice O’Marra dismissed the plaintiff’s claims and entered judgment for the defendant.

Court: Plaintiff’s “Subjective Belief” Not Enough to Hold Defendant Liable

Aside from the plaintiff’s testimony, Justice O’Marra heard expert testimony from two forensic experts. The experts were engineers called by the plaintiff and the defendant, respectively, who testified as to the condition of the speed bump at the time of the accident.

The plaintiff’s expert said that based on his review of the photographs taken by the plaintiff’s son-in-law and his own personal examination–which took place in 2014–the speed bump “does not conform to the industry standards” for safe walking surfaces. More precisely, the expert said the design of the walkway and speed bump “created a visual trap” and that “normal average pedestrians could be fooled or tricked by the gritted appearance of speed bumps especially when focused on getting to their destination safely while negotiating through busy traffic.”

In contrast, the defendant’s expert said the speed bump was “clearly marked,” and that based on the available information, the “pavement marking used to delineate the subject speed bump was compliant” with applicable industry standards.

Justice O’Marra concurred with the defence expert. The main reason the plaintiff’s expert deemed the speed bump unsafe was that it was painted with “gritted yellow lines” rather than painted solid yellow. As the defence expert explained, and the judge agreed, the standard only requires markings provide a “clear contrast with the surrounding black asphalt surface.” In this case, the gritted yellow lines of the defendant’s speed bumps met that standard.

Aside from the design of the speed bump itself, Justice O’Marra said the plaintiff failed to provide sufficient evidence of causation–that is to say, any proof that the defective speed bump caused her to trip and fall in the first place. Indeed, as noted above the plaintiff admitted she did not initially know what caused her to fall. It was only two weeks later that she discovered the “missing piece” of the speed bump and speculated that was the cause.

Unfortunately, speculation is not enough to support an inference of negligence under Ontario law. Justice O’Marra said there was “no objective evidence presented that connects the plaintiff’s fall with any deficiency of the speed bump markings or its condition at the time of her fall.” Her theory of the accident was therefore little more than a “subjective belief.” For these reasons, the judge was compelled to dismiss the case and award costs to the defendant.

Contact Preszler Injury Lawyers if You Have Been in a Slip-and-Fall Accident

If you find yourself in a similar situation to the plaintiff in the above case, it is imperative that you take immediate action to learn more about the circumstances of your accident. You should promptly report any accident on someone else’s property to an authorized employee. And if you, or someone with you, is in a position to photograph the accident scene on the same day, that can prove enormously helpful later in trying to establish causation.

You should also not hesitate to contact an Ontario personal injury lawyer as soon as possible after your accident. Call Preszler Injury Lawyers today to schedule a free, no-obligation consultation with one of our lawyers.

Source:

CanLII