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Not My Apron


It is not uncommon for a plaintiff to sue everybody whose property is located near the area where the plaintiff slipped/tripped and fell. It's a “shotgun” approach with these claims and the plaintiff, or for that matter his/her lawyer, would want no stone left unturned. Generally, such claims are pursued under the Occupier’s Liability Act the defines an Occupier as:


(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,


In Bongiardina v York (Regional Municipality 2000, the Court of Appeal for Ontario provided some general principles on the duty owed by the homeowners with respect to municipal owned properties adjacent to their homes. They have been reproduced as under:


There is no common law duty on the owner of property to clear snow and ice from public sidewalks adjacent to the property. The snow and ice accumulating on public sidewalks are the legal responsibility of the municipality. There are two exceptions to this general principle. First, a property owner may be deemed in law to be an occupier of adjacent public property if the owner assumes control of that property. The second exception to the general principle that a property owner is responsible only for his or her property is that the duty of care on the owner extends to ensuring that conditions or activities on his or her property do not flow off the property and cause injury to persons nearby.


The first exception is known as the “special circumstances” exception. The second one is referred as the “flow exception”. There have been numerous lawsuits discussing the “special circumstances” exception. Such circumstances tend to be more applicable to the retail store/business owners rather than the homeowners.


In Townsend v. City of Kitchener, 2019, the Superior Court of Justice – Ontario, analysed these issues in light of a trip and fall incident involving a minor child, that occurred over a raised concrete edge of a buried metal transformer box, owned by the defendant Kitchener-Wilmot Hydro (“KW Hydro”). The incident occurred in December 2015. This box/vault was located on the apron of a driveway on the road allowance owned by the City, adjacent to the respective properties owned by the defendants Robert Alex MacLean (“MacLean”) and Donna Visee (“Visee”). Both the homeowners brought a motion of summary judgment seeking dismissal of the action and all cross-claims against them.


The following facts were established:


·        The Vault existed at the time when the homeowners purchased their respective properties.

·        Visee and MacLean both drive their vehicles over the apron, removing snow and ice and applying salt when needed. MacLean also would carry out some minor weeding and lawn care where the driveway apron meets the grassy area.

·        None of them made any repairs to the driveway or driveway apron, except for applying some liquid driveway sealer once before the incident between 2009 and 2011 and once few months after the incident [for aesthetic purposes].


Further, on inspection of the vault by an engineer, it was advised that the height variance of the vault with the surroundings (that led to the raised structure causing this trip and fall) was because of the deterioration of the apron itself, over a period of time and that it was not related to any shifting or deterioration of the vault. According to the homeowners, they didn't notice any difference in the height variation since they moved in 2005/2006.


Allowing the summary judgment motions and dismissing all claims against the homeowners, the presiding judge stated the following at Paras 43, 44 and 45 [with respect to the exception of “Special Circumstances”], reproduced here in Part:


I am unable to find on the evidentiary record before me that either MacLean or Visee had such control over the driveway apron as to make either of them a occupier for the purposes of the Act ………….KW Hydro led no evidence on the frequency of use or passage over the driveway apron by members of the public and therefore the degree of exclusivity that MacLean and Visee exercised over it.


The fact that MacLean performed some maintenance work on the area around the electrical vault after the incident does not contribute to a finding that he exercised the requisite degree of control prior to the incident to make him an occupier. 


………..the fact that MacLean and Visee by necessity had to pass over the driveway apron if they wished to access their property with a vehicle is not determinative of control.


One may be curious to know though, what would have been the result had this been a slip and fall incident rather than a trip and fall, in the same area, especially when the homeowners used to carry out snow removal and salting activities in the area. Just because they were carrying out these activities, would that have changed the decision leading to a triable issue? Similarly, just because one salts and shovels the sidewalks in front of his/her home, does that make the homeowner liable to the pedestrians in case of a slip and fall incident? And what about those retail store owners who invite customers?


Disclaimer

The content of this article is intended to provide general guidance only. A specialist must be consulted for specific circumstances. 

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