Shopping mall gate not inherently dangerous, no damages awarded
In the recent case of Powell v. 585562 B.C. Ltd. 2018 BCPC 19, on August 21, 2014 the Claimant suffered an unfortunate accident when she struck her head on the end of a large gate at the entrance to a covered parking area. The Claimant testified that she struck the end of the gate in the course of getting out of the way of an oncoming car that was entering the parking garage. The accident occurred on the premises of the Seven Oaks Mall in Abbotsford, B.C. The Defendant was the owner and operator of the mall. The Defendant denied liability for the Claimant’s injuries and argued that the accident occurred as the result of the Claimant’s failure to take reasonable care for her own safety. The Claimant alleged that it is the Defendant who is at fault for creating a dangerous situation in which the blunt, darkened end of a large metal gate was left in a location and position that was difficult to notice, in an area that put pedestrians at risk because of its design and location. As a result of the accident, the plaintiff suffered facial bruising and Grade 2 neck strain in accident, resulting in chronic myofascial pain syndrome, headaches, and increased anxiety.
The area that the Claimant planned to leave the underground parkade was the same area where the cars entered and exited. This entrance could be blocked off by a large hinged metal gate, and that gate was open at the time. The end of one half of the gate was located above a small concrete curb or aisle, about the width of a sidewalk, beside the lane used by cars entering the parkade. The end of the gate is about two inches by two inches and it is hollow and open at the end. The bottom of this end of the gate is located about four feet from the top of the concrete aisle, and the concrete aisle is about seven inches from the ground. The top of the end of the gate measures fifty-eight inches (or four feet, ten inches) from the ground. The arm of the gate, when open, is locked in place, but has some play at the end. The Claimant is five feet, five inches tall (or sixty-five inches). The arm of the gate is painted yellow. The Claimant was walking out of the parkade towards the entrance to the mall. Outside of the parkade was another small parking area from which a separate roadway was located for cars to enter and exit the parkade and for a few vehicles to park closer to the mall. Past these parking spaces was a perimeter road around the mall, with a cross-walk across that road, leading to the mall entrance to the north of the Sears store. The Claimant had planned on going to that entrance, using the cross-walk. The Claimant walked out of this exit of the parkade, walking on what was for her the left side of the road, in order for her to face any on-coming traffic. As she reached this exit, she noticed an oncoming vehicle and she decided to step up onto the curb of this aisle, in order to get off of the portion of the road used by vehicles. As she did so, she stepped into the end of the gate, which impacted with her face.
The Court addressed the issue whether the defendant was liable for the injuries suffered by the claimant under the Occupiers Liability Act.
The Court applied the following principles of law. An occupier of premises (such as the shopping mall) owes a duty to persons using the premises to take that care that in all the circumstances of the case, those persons will be reasonably safe in using the premises
- An occupier of premises (such as the shopping mall) owes a duty to persons using the premises to take that care that in all the circumstances of the case, those persons will be reasonably safe in using the premises.
- The standard of reasonableness is not one of perfection. The occupier is not an insurer against any possible risk of harm.
- The Occupiers Liability Act provides a complete code regarding the duty of an occupier of land.
- Section 3 of the Occupiers Liability Act does not create a presumption of negligence against an occupier whenever someone is injured on the premises. A claimant has the burden of proof, on a balance of probabilities, to show some act (or some failure to act) on the part of the occupier which caused the injury complained of before liability can be established.
- The occupier’s duty is not to ensure that those using the premises will be absolutely safe. It is to use reasonable care to prevent injury or harm from danger that is or ought to be known.
- The test is not “whether anything could have been done to prevent the injury using 20/20 hindsight.”
- In determining liability, reasonable foreseeability of the harm which occurred must be considered.
- For a risk to be foreseeable, the degree of probability required is that it must be a “real risk”, i.e. “one which would occur to the mind of a reasonable man in the position of the defendant and which he would not brush aside as far-fetched”.
- The care that must be taken by an occupier differs according to the nature and use of the premises.
- While prior safe use is not determinative of the issue of occupier’s liability, prior safe use of premises is a relevant factor in determining whether premises are reasonably safe.
- Corrective or remedial steps taken by the defendants following an accident are not to be considered as proof that such steps were required to make the premises “reasonably safe.” Actions taken after the fact are merely factors to be considered in answering the question of whether the area at the time of the accident was reasonably safe.
- Persons using premises are under a duty to be aware of their surroundings.
- It is not negligence or a breach of any duty not to warn an adult person, not suffering under any disability, of the ordinary risks arising out of the exigencies of everyday life.
For the Claimant to establish causation within the context of liability for personal injury, she must prove, on a balance of probabilities, that the Defendant either caused or contributed to her injuries. The Claimant does not have to prove that the Defendant’s negligence was the sole cause of her injury. “As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act along was not enough to create the injury.” As an occupier, the Defendant made no guarantee that everyone who sets foot onto its premises will be completely safe or free from injury. However the Defendant does owe a duty at law to persons using the premises, such as the Claimant, to take that care that in all the circumstances of the case, those persons will be reasonably safe in using the premises. The standard is one of reasonableness and not one of perfection. For a risk to be reasonably foreseeable, the degree of probability of it happening must be such that a reasonable mall operator in the position of the Defendant would not brush it aside as “far-fetched”. Persons using premises are under a duty to be aware of their surroundings. For example, people crossing a street should watch for cars. People who are distracted can walk into all kinds of objects or structures that can cause injury if they are not paying attention. A corner of a building is not normally considered an unsafe object, but if someone who is distracted happens to walk into it, he or she can become injured. However the law does not normally require property owners to put caution signs in front of building corners or fences around them.
A risk is reasonably foreseeable if the degree of probability of it happening is such that a reasonable occupier in the position of the Defendant would not brush it aside as “far-fetched”. In this case, the Defendant knew that pedestrians would exit the parkade in the area of that gate. The Defendant was not obliged to anticipate every potential way in which a pedestrian might be injured. It was expected to address only what was required to make users of the premises reasonably safe. It was reasonable for the Defendant to assume that persons exiting the parkade would take reasonable care for their safety, that they would keep a proper lookout for vehicle traffic and avoid walking in the path of oncoming vehicles or stationary objects. The presence of this metal gate at the entrance to the parkade did not bring with it any obvious risks to persons entering and exiting the parkade. It was large and visible, it was painted a bright yellow, and it was off to the side and not located where people would be reasonably expected to walk into it. Although the paint had worn off at the end of the gate, it was still visible to those who approached it. A concrete parkade is full of hard surfaces that someone could become injured in a number of possible ways. The duty imposed at law on the occupier does not require that these surfaces be cushioned to prevent all manner of injury. Rather, the law sets a standard of reasonableness. There is nothing about the premises at the mall parkade that was “misleading or inherently dangerous”. There is nothing in the evidence which supports the conclusion that anything the Defendant did or failed to do caused or contributed to the Claimant’s accident. They are things which, with the benefit of hindsight, the Defendant might have done to lessen the likelihood of its occurrence or which would have completely prevented it. To found liability on this basis would be to impose a standard of perfection or even clairvoyance on the Defendant. The law does not require an occupier to meet such a high standard. As a result, the Court found that the Defendant was not in breach of the duty owed under the Occupier’s Liability Act and that it is not liable for the Claimant’s injuries. Accordingly, the Claim brought against it in the action was dismissed.