Inattentive pedestrian means village not responsible for fall

In the recent decision of Herrington v. Kaslo (Village of), 2018 BCSC 1077, the  court found an inattentive pedestrian who fell was not entitled to damages. The plaintiff claimed against the Village of Kaslo for damages due to a fall on September 8, 2012 on Water Street. Water Street is an unimproved part of the downtown area, which functions essentially as an alley. There are barriers to prevent vehicles from going over the edge of the drop off which is behind the barriers. There is no path on that side of the barriers. To the left of the area where Mrs. Herrington fell there is a cenotaph. A few years ago it was encircled on the side toward the cliff for decorative purposes by a chain. It did not extend past the edge of the cenotaph. Between the cenotaph and the barriers there is a gap.

Mrs. Herrington was helping her husband on September 8, 2012, when she fell. She was helping her husband park their motor home. She was guiding her husband when she stepped off the edge of the embankment. At the time of the fall, the area of Water Street was two lanes wide. It was unpaved and marked off from the south by a series of concrete barriers to mark out the area where vehicles could safely park. Between each barrier there is a gap, and it was by means of this gap that Mrs. Herrington had access to the bank area and the area she was standing on the bank.

The plaintiff was familiar with the area. She and her husband had attended the farmer’s market in 2011 and 2012. The plaintiff noticed her husband trying to back up the motor home. She told him she would help him and turned her back on the embankment. She made hand gestures and stepped to the left and fell down the embankment. The Court found the following facts about Water Street in 2012: (a) It was an unpaved road; (b) It was essentially the “alley” for the businesses on Front Street and provided those businesses with loading access; (c) The north side of Water Street was used for overflow parking, and people typically parked facing the north; (d) The Village had placed concrete parking barriers (the “Barriers”) on the north side of the street to demarcate the parking area and the embankment (the “Embankment”) to the north; (e) Most people who parked on Water Street did so to access Front Street or Kaslo Bay (where the Jazz Festival took place); (f) People who parked on Water Street typically walked along the road towards Front Street or Kaslo Bay, as there was no path on the north side of Water Street; (g) Neither Rob nor Glen ever saw people walking to the north of the Barriers on the north side of Water Street; (h) It would be difficult to walk to the north of the Barriers as the ground was uneven and not maintained; (i) The Subject Area was not well-used; (j) The Embankment was obvious given the location of the Kootenay Lake and the concrete barriers and post and chain fence near the cenotaph; and (k) There have been no other reported falls from the Embankment, before or since.

The Court found that the Plaintiff was an inattentive pedestrian and entirely responsible for her fall. She she did not exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The infrastructure that was placed in the area where the plaintiff fell was adequate. It was not necessary to put up fencing for fall protection as it was obvious that the area was hazardous and the area was hardly used. The plaintiff knew the Embankment was there having been to Kaslo many times before the accident. On September 8, 2012 she was not looking at her feet or the embankment as she was walking backwards to guide her husband who was parking the RV. If she had been looking where she was going she would not have fallen off the Embankment. The Court found that the village set up the standard in reasonable manner as: (1) The Embankment was patently obvious to anyone in the area; (2) The plaintiff admitted she knew it was there; (3) There have been no incidents of people falling down the Embankment in all the time that Rob and Glen worked for the Village; and (4) The area was not used very often. The plaintiff walking backward toward the Embankment was the proximate cause of her unfortunate fall. The action was dismissed with costs to the defendant.

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