Traversing through those long-lasting conduits connecting the parking lots to the subway stations could not only be tiring but could be scary too. Especially when one is passing through one of these all alone, during those “Non-Rush” hours. After all, there appears to be no security checks on the persons who are entering and using these conduits and sometimes people just hang in there doing nothing for hours, without apparently getting asked to move out. The city could be expected to do only so much! Correct?
Crime Prevention Through Environmental Design (CPTED)
As per Toronto Police, CPTED is a crime prevention approach based on a theory that the built environment influences the behavior of people. The proper design and effective use of the built environment can lead to a reduction in the incidence and fear of crime, thereby improving the quality of life.
But is there a requirement under law for the city to follow CPTED strategies while designing, construction or renovating areas such as subway stations, conduits connecting stations and similar structures?
In McAllister v Calgary (City), 2018, the Court of Queen’s Bench of Alberta released a decision that could potentially alter the legal landscape, at least in Alberta, while dealing with municipal liability claims in light of the policy decisions made by the city.
The case related to assault of the plaintiff by strangers when he was passing through a conduit (Plus 15 walkway) connecting the Canyon Meadows C-Train station to its parking lot.
The facts of the case are as under:
The Plaintiff, Kyle McAllister (“Kyle”), was assaulted in the wee hours of January 1, 2007, on the Plus 15 connecting the Canyon Meadows C-Train Station parkade to the Canyon Meadows C-Train Station. At the material time, he was accompanied by a friend. The assault took place over a period of around 20 minutes.
Kyle sued the City of Calgary (the “City”) for damages/injures resulting from this assault, alleging City’s breach of the “duty of care” owed to him as an “Occupier” under section 5 of the Occupiers’ Liability Act, RSA 2000 c O-4.
Positions of the Parties
Kyle alleged that “due to insufficient lighting, cameras, peace officers, surveillance video monitoring personnel, and the absence of a trespass ban or special events policy the City failed to the meet the duty and standard of care owed, resulting in or contributing to the severity of the assault and injuries suffered.”
The city argued that it is not an occupier of the area where the incident occurred, stating Plus 15 was a highway or recreational trail exempt form the application of the Occupiers’ Liability Act and it cannot exert the level of control over the Plus 15 (since it is not only a conduit used for traversing to and from between the parkade and the station, but also allows for passage of pedestrian traffic to and from adjacent neighborhoods) required to give it “occupier” status under the Act.
The city also argued “foreseeability” of a sudden, random and unprovoked attack, and even if the city was an occupier under the Act, the Plaintiff has failed to prove the standard of care of a municipal transit service in 2006 with respect to the issues of lighting, cameras, sufficiency of peace officers and other personnel, and the reasonableness and efficacy of a trespass ban or special events policy.
Finally, the city argued absence of any causal connection between the alleged breach and injuries.
Issues at Trial
The trial only discussed issues with respect to the City’s liability. The following issues were considered, holding the city liable for the incident:
1. “Occupier” Status of the City
The City was considered as an occupier. Following considerations were found relevant:
The City constructed, owns and was responsible for the repairs and maintenance of the Canyon Meadows C-Train Station parkade, Plus 15, shelters, and station. The Plus 15 was used predominantly by the train passengers and the city controlled the activities occurring on the Plus 15. The court rejected the City’s argument that the Plus 15 was a “highway (or a sidewalk encapsulated in the term highway)”.
2. “Visitor” status of the Plaintiff
This was less than a “no brainer” and the plaintiff presence on the Plus 15 was found to be lawful putting him in the category of a “Visitor”.
3. What was the “Standard of Care” to be met by the City as an “Occupier” towards the plaintiff as a “Visitor”?
The Court held, after reviewing expert evidences from both the sides:
Even if the standard of care is less than what CPTED would demand, I am still satisfied that at a minimum the duty of care owed by the City would include the installation and maintenance of sufficient lighting, video surveillance, and staffing levels to deter crime or allow its detection and an appropriate and timely response thereto.
4. Was there a breach in the “duty of care”?
The court found that the “City failed to meet the standard of care of a municipality in providing a safe and secure transit environment, and therefore breached the duty of care owed to Kyle", though the failure to perform an earlier safety audit or the absence of a trespass ban or special events policy were NOT found to be breaches of the duty and standard of care.
The following factors were considered:
Video surveillance, camera placement and lighting quality were found to be inappropriate and/or of poor quality that made it impossible for the transit security officers to readily observe the assault. The court stated:
Although, better camera placement, quality lighting and cameras may not have prevented the initial assault, it certainly would have allowed the observation of a violent assault lasting up to 20 minutes and involving multiple assailants.
The city was found to have employed an insufficient number of personnel to observe and monitor the surveillance footages and was also found with understaffing of peace officers for a busy night such as the New Year’s Eve on which the incident took place.
5. Was there a “causal connection” between the breach and the injuries?
The court held, employing the “but for” test of causation:
But for the City’s breach of the duty of care as outlined above, I am satisfied on a balance of probability, that the attack would have been observed in its first minute by video monitoring personnel who would have responded in a manner consistent with their training to immediately dispatch peace officers or CPS to the scene. Further, I am satisfied on a balance of probability, that an increased complement of peace officers would have resulted in a timely response and intervention to prevent the ongoing assault.
The decision makes one wonder about the immunity provided to municipalities under the “policy decisions” defence for their civil liability, where traditional tort analysis does not apply.
If one is investigating a claim for a city's/municipality's station areas, the following considerations, inter-alia, may be taken into account:
Did the incident occur on a “special event” day inviting “more than usual” crowd?
Security measures employed by the concerned authorities and their effectiveness in preventing or stopping an incident from happening, especially in light of “more than usual” crowd, if applicable.
Though a policy decision, did the city meet the reasonable standard of care in making those policy decisions.
Are there enough and enforceable policies in place for “special event” days, especially when a transit system is offering discounted and/or free ridership.
Are there enough personnel to handle the “more than usual” crowd?
What is the general response time of the officers in case of an incident and what standards are maintained.
Is there any previous incident history?