Pedestrian Injury: District liable due to faulty utility-hole cover
In the recent decision of Curtiss v. The Corporation of the District of West Vancouver, 2018 BCSC 509, the District of West Vancouver was held liable for the serious pedestrian injury Ms. Curtiss fell into an open meter box that was within a sidewalk owned by the District. There was no direct evidence as to how the lid to the meter box became dislodged. On the issue of liability, the question before the Court was did the District breach the standard of care by installing the meter box and lid at the location of Ms. Curtiss’ fall? If so, did that breach cause Ms. Curtiss’ fall?
The meter box is a concrete chamber that is approximately 29 inches long, 21 inches wide and 36 inches deep. The concrete surrounding the meter box and lid has deteriorated caused by truck traffic and/or weather changes over time. The District has no record of any prior complaints regarding the meter box and/or sidewalk in the area of Ms. Curtiss’ fall. Whenever the meter box and lid were installed, the District did not dispute that vehicles have driven over the lid. That vehicles have driven over the lid is also evident from the fact that the lid is bent into a concave shape.
The Court found that an injury to Ms. Curtiss was foreseeable because (at para. 33):
- The meter box and lid were in an area that would be frequented by traffic of all kinds.
- The meter box was located in an area where vehicles would drive over it.
- Pedestrians would routinely walk in this area.
The Court found it was reasonably foreseeable that an under-designed lid at this location could be bent or broken by vehicular traffic which would create a tripping hazard and a real risk of harm to pedestrians passing over the lid.
The Court found the gravity of potential harm caused by a tripping hazard on a sidewalk in the location of Ms. Curtiss’ fall to be quite high and that the expected users of the sidewalk at issue would include a wide variety of people, including the ill and the elderly – people who are particularly vulnerable to serious injury in the event of a fall (para. 36).
The Court found that there were a number of inexpensive steps that could have been taken to ensure that the meter box and lid would not be damaged by vehicular traffic such as a lid rated for vehicular traffic could have been installed (para. 37).
The Court accepted the evidence of expert witness Mr. Bailey who concluded that the lid at issue would pass the requirements of a “Light Pedestrian Traffic Only” lid but not the requirements of a lid that had to support any kind of vehicular traffic, also evidence by the lid’s concave shape.
Given the location of the meter box and the fact that there was nothing to prevent vehicles driving over it, the lid should have been designed to withstand at least occasional vehicular traffic. It was not (para. 53). The Court held:
 After considering all of the circumstances, I conclude that the District’s design and installation of the meter box and lid did not meet the standard required in the circumstances. An ordinary, reasonable and prudent designer would have ensured that a lid designed to withstand the loads associated with vehicular traffic was installed.
Finally on the issue of whether the District’s breach of its duty caused Ms. Curtiss’ fall, she was able to prove on a balance of probabilities that the mechanism of the lid becoming dislodged was due to the under-design of the lid. The Court found the expert evidence of Mr. Bailey more convincing because Mr. Bailey’s reports provided greater detail to explain the dynamic process that could have resulted in the lid becoming dislodged, in spite of the reinforcing bars. Mr. Bailey’s reports made clear that the lid could have been dislodged with other combinations of lid orientation, vehicle weight, tire placement, vehicle speed, and vehicle acceleration or deceleration.
The Court accepted that despite the lack of direct evidence, a vehicle driving over the lid was the cause of the lid to become dislodged based on common sense inference: (1) Ms. Curtiss’ fall occurred in the middle of the day. Therefore it is highly likely that the lid became dislodged shortly before her fall (para. 72); (2) the lid is immediately adjacent to the entrance to the Shoppers parking lot and is in direct line with the loading bay of the Shoppers store. There is a history of vehicles driving over the lid (para. 73); (3) Mr. Bailey’s opinion that a vehicle driving over the lid could have caused it to become dislodged (para. 74); (4) multiple witnesses have seen vehicles drive over the lid; (5) it is highly unlikely that either a curious passerby or vandal would have gone to the effort of removing the lid while in plain sight in the middle of the day (para. 77); (6) it is also highly unlikely that a curious passerby, with no ill intent, would remove the lid to satisfy his curiosity and then depart, leaving behind an obvious hazard (para. 78); (7) it is extremely unlikely that an employee of either the District or Shoppers would remove the lid without taking appropriate safety precautions to ensure that no one drove over or fell into the chamber (para. 80). The Court concluded:
 Tying everything together, I conclude on a balance of probabilities that if the District had designed the lid to an appropriate standard, it would have withstood the loads associated with vehicular traffic, and it would not have been dynamically expelled by a vehicle driving over it prior to Ms. Curtiss’ fall. In short, if not for the District’s negligence, Ms. Curtiss would not have been injured.
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