Painted yellow line not needed to show a drop in pavement: change in asphalt colours can substitute
In the recent decision of Sapia v. Invermere (District), 2018 BCSC 1145, the court held a painted yellow line was not needed to identify a drop in pavement height, which could cause a fall. The plaintiff, who was injured in a fall, sought damages from the municipality for negligent maintenance of a walkway leading to a senior citizen’s hall. On October 17, 2014, the plaintiff, Ms. Sapia, was 82 years old and a regular patron of the Invermere Seniors’ Hall (the “hall”). As she was leaving the hall, Ms. Sapia fell to her left in an area where the walkway is higher than the parking lot. Ms. Sapia was unable to describe how or why she fell. Ms. Sapia tendered opinion evidence that because of seniors’ decreased visual acuity, the absence of a warning yellow line to demarcate the elevated portion of the walkway was the reason for the fall.
The Senior Citizens’ Association of British Columbia, Branch #78 (the “Association”) and the District of Invermere (the “District”) own a one-story building in Invermere that housed the hall frequented by senior citizens. The hall has a small parking lot at the front with about five stalls for perpendicular parking adjacent to a walkway that runs along the building. Since at least 2002, there had been a step up from the parking lot to the walkway. In 2010, the District redid the parking lot by levelling the parking lot with the walkway at the entrance of the building and creating a gradual slope so as to enhance storm water redirection. The result was that the parking lot at the end of the walkway farthest from the entrance was lower than the sidewalk by about six inches. The step up from the parking lot was about the same height as a standard curb in the District. Ms. Sapia was a regular patron of the hall. She went there twice per week to play bridge and also on other special occasions. She had been there on hundreds of occasions before and after the parking lot was redone. There have been no reported incidents or complaints about the step up from the parking lot to the walkway either before or after the repaving. There is a noticeable difference in the colour between the walkway and the parking lot. The pavement is dark black – the walkway is light grey.
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 testified that she had no cognitive issues or difficulties with sight. 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. 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 plaintiff’s witness was Dr. Donderi a “human factors expert” who provided a report 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”. Dr. Donderi also concluded that at “a Seniors’ 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 (or at the end of the Sidewalk, for that matter) much less likely to have been detected…”. Dr. Donderi’s analysis was predicated on the fact that the top part of the parking lot was level with the walkway and even though the respective surfaces were coloured differently, there was no warning that there was an elevation change as the parking lot slope changed. Since Ms. Sapia’s fall, the area where the elevation changes commence have been highlighted by yellow paint.
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.
The Court held that any “remedial” steps taken by the defendants are not to be considered as proof that such steps were required to make the premises “reasonably safe.” What is done after the fact is merely a factor to be considered in answering the question of whether the area at the time of the accident was reasonably safe for occupants of the premises. 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. The Court was satisfied that the existence of a painted yellow line would have alerted Ms. Sapia to the drop from the sidewalk to the parking lot. However, there was some other cautionary alert between the sidewalk and the parking lot in the absence of a painted yellow line 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.
The Court also concluded that the drop from the sidewalk to the parking lot was 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. Therefore, there was no need for a painted yellow line at the edge of the sidewalk to highlight what was apparent for all to see. Any number of measures could have been undertaken to highlight the step down from the sidewalk from a painted yellow line to the erection of a sign but 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. The result is that Ms. Sapia has not shown on a balance of probabilities that the defendants had breached their high standard of care to provide premises frequently used by senior citizens that were reasonably safe. The action was dismissed.