Elderly person falls and injured leaving Senior’s Hall. Senior’s Hall not at fault.
Case name/citation: Sapia v. Invermere (District), 2018 BCSC 1145.
Case Link: http://www.courts.gov.bc.ca/jdb-txt/sc/18/11/2018BCSC1145.htm

On October 17, 2014 Ms. Sapia was 82 years old and a regular patron of the Invermere Senior’s Hall (the “hall”). As she was leaving the hall, she fell to her left in an area where the walkway is higher than the parking lot. She had been unable to describe how or why she fell.

Ms. Sapia sued the District of Invermere, the owner of the hall, for the injuries she sustained. Instead of a full blown trial the parties asked the court to hear the case by way of summary judgment application and to sever liability and quantum of damages.

When a case is heard by summary judgment application the evidence is presented by way of affidavits rather than live witnesses (having live witnesses is also known as having viva voce evidence). When the Court is asked to “sever liability and quantum of damages” the Court is being asked to determine liability first and separately from what, if any, is the appropriate compensation for the plaintiff (i.e. damages). The purpose of proceeding in this fashion is to have the first issue, liability, determined in the most cost-effective manner possible before proceeding to damages, which would be more time-consuming in terms of trial days and expensive in terms of calling medical and other expert evidence. If the plaintiff loses on liability then the case comes to an end and there is no point in having a second trial on quantum of damages. The judge agreed to hear the case by way of summary judgment application and to hear liability first and separate from quantum of damages.

Hence the only issue before the court at this time was liability and the evidence presented to the court was by way of affidavit evidence, not live witnesses. The trial took one day.

The court summarized the fall as follows:

“[13] October 17, 2014 was a sunny day – there was no precipitation on the ground. Ms. Sapia arrived at the hall for her twice-weekly bridge club gathering. She parked in one of the parking stalls furthest from the entrance and where the parking lot was lower than the sidewalk. She played bridge until about 4:30 p.m. Ms. Sapia left on her own and walked along the walkway. She was generally looking at her car as she walked. She had no health issues. She fell to the left. She could not say how, where or why she fell. No one saw her fall. She was seen shortly after sitting on the curb and in obvious distress.”

Ms. Sapia did not know why she fell.

The court described the walkway:

“[17] The six-inch height differential from the parking lot to the walkway is consistent with the standard street elevation change of six inches from an adjacent roadway or driveway. The six-inch height differential is in compliance with the rise of an exterior stair serving the building.”

The lawyer for Ms. Sapia filed a report from a “human factors expert” which concluded that the edge between the walkway and the parking lot should have had a warning sign or yellow line to alert seniors “to the visually imperceptible difference in elevation”. The report also concluded that at “a Senior’s Hall one would expect that members’ vision would be relatively poor at detecting edges or small irregularities in any surface, making the hidden hazard of the unexpected drop at the edge of the sidewalk …much less likely to have been detected..”.

The court noted that since Ms. Sapia’s fall the area where the elevation changes commence have been highlighted by yellow paint.

The court then went on to summarize the key principles of law:

First, the District of Invermere is an occupier as defined under the Occupiers Liability Act and owed a duty of care to Ms. Sapia.

Second, an occupier’s duty of care is one of reasonableness in the circumstances. The duty does not amount to perfection. A visitor is not to be immunized against every possibility of danger.

Third, there is a high standard of care where it is apparent that the premises will be used by senior citizens or where the principal users have a decreased awareness of their surroundings.

Fourth, an occupier’s conduct will be negligent if it creates an “objectively unreasonable risk of harm”. The standard of care required is that of “an ordinary, reasonable and prudent person in the same circumstances”. Reasonableness depends on the facts of each case.

Fifth, compliance with statutory standards such as a building code does not in and of itself preclude civil liability.

Sixth, remedial measures taken after an event are not necessarily determinative that such steps were undertaken to comply with the duty of care. Remedial steps are only a factor to consider (such as the painting of the yellow line after the slip and fall).

Seventh, although the safe use of the premises prior to the event is a factor to consider, it is not necessarily determinative of whether the occupier has satisfied the standard of care (there was evidence that Ms. Sapia had used the walkway many times in the past as had other patrons, without incident).

Eighth, the burden of proof with respect to causation remains with the plaintiff throughout. The mere fact that Ms. Sapia fell does not establish liability. The plaintiff must prove what hazard caused her to fall – it is wrong to speculate as to the cause.

In applying the facts to the law the court first had to deal with the “human factors” expert report:

“[28] The defendants take issue with Dr. Donderi’s report and argue that his opinion improperly goes to the ultimate issue at law. They argue that he has provided a conclusion that is more properly the decision that the court must make.

[29] There are times when the opinion expressed by an expert blurs the line between opinion and answering the question reserved for the court to determine. For example, an allegation may be made in a motor vehicle claim that a party was travelling too fast for road conditions. It is quite proper for a party to lead expert evidence opining as to the respective speed and how that speed could be accommodated by road conditions. Although that opinion may come close to providing the answer to the allegation, it is only an opinion. The court may reject the opinion, accept it or give it more or less weight.

[30] If the opinion is of a subject matter that requires special skill or knowledge and may assist the trier of fact, it is open to the court to accept it as a piece of evidence to consider within the context of the entire body of evidence proffered.

[31] However, too often, parties turn to expert evidence when it is unnecessary. That may be out of an abundance of caution lest commentary be made that the action suffered from an absence of expert opinion. Thus, while expert evidence may increase the cost of litigation it is perhaps understandable why extra caution by a litigant causes such testimony to be tendered.

[32] In this case, expert evidence was not necessary. Dr. Donderi has provided commentary that is common knowledge. Judicial notice can be taken of the fact that as people encounter their senior years, their physical prowess declines; that includes decreased visual acuity.

[33] I therefore conclude that Dr. Donderi’s analysis is not particularly helpful in the sense that he has opined in an area that does not require specialized skill or knowledge. However, in spite of these comments and in the circumstances of this summary trial, I am not going to exclude the report from consideration. It is simply a piece of evidence to consider within the whole of the

The court then went on to deal with the main issue:

“[34] The narrow question is whether the defendants failed to provide a reasonable standard of care and if so, whether the defendant’s breach caused the plaintiff’s injuries.

[35] The presence of the yellow line now highlights the edge of the walkway at the point where the parking lot begins to slope away and creates an uneven surface. One way to assess the appropriate standard of care would be to ask if the existence of the yellow line would have alerted Ms. Sapia to the drop from the sidewalk to the parking lot. I am satisfied that a yellow line would have provided such an alert.

[36] However, I must also ask whether there was some other cautionary alert between the sidewalk and the parking lot in the absence of a yellow line. I am satisfied that there was such an alert even though it may not have been deliberately created for such a purpose. The sidewalk and the parking lot were of markedly contrasting colours. The edge of the sidewalk was apparent by those colouration differences.

[37] The next question is whether the drop from the sidewalk to the parking lot was apparent. I conclude that it was. It is apparent from looking at the photographs of the sidewalk and parking lot that the change in elevation is obvious. It would also be apparent to a person departing from the hall and walking down the sidewalk to the last two parking stalls. It would be readily apparent that a car parked in either of the last two stalls was at a lower height – that could only mean one thing – there was a drop from the sidewalk to the parking lot.

[38] There was no need to mark or paint a yellow line at the edge of the sidewalk to highlight what was apparent for all to see.

[39] Any number of measures could have been undertaken to highlight the step down from the sidewalk from the painting of a demarcation line to the erection of a sign. Those measures would equate to perfection. However, the standard of care does not require an occupier to be perfect. The occupier must provide premises that are reasonably safe in the particular circumstances.

[40] On the day that Ms. Sapia fell, the defendants had provided premises that were reasonably safe. In coming to that conclusion, I have assumed that she fell in the area of the last two parking stalls where there was a drop from the sidewalk to the parking lot. I have made that assumption even though Ms. Sapia was not sure of where she fell.

[41] The result is that Ms. Sapia has not shown on a balance of probabilities that the defendants have breached their high standard of care to provide premises frequently used by senior citizens that were reasonably safe. The action is dismissed.”

Written by: Michael Hoogbruin, Vancouver Personal Injury Lawyer
Firm: Hoogbruin & Company, Personal Injury Lawyers
Contact: 650-1188 West Georgia Street, Vancouver, B.C. V6E 4A2
Phone: 604-609-3783;
Website: www.hoogbruin.com
Email: mhoogbruin@hoogbruin.com

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