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Posted on March 1st 2009 in Insurance Litigation

Who is Responsible for the Fall?

The Ontario Court of Appeal recently decided an appeal involving a typical slip and fall case. With that fact situation as a backdrop, we will explain the law of slip and falls on private property.

The Facts
Mrs. Kerr was grocery shopping at the local Zehrs, which was owned by Loblaws. She was in the produce section when she slipped and fell on a grape. The fall was a nasty one and she required surgery to repair her ankle. She sued Loblaws for damages for her injuries and for the expenses associated with her post-accident care.

Although Loblaws did not dispute that the 80-year old Mrs. Kerr had fallen, it did deny that it was liable for the fall or any ensuing damages.

The Law
In a slip and fall case, the court will consider a number of questions to determine if a defendant is liable for a plaintiff’s damages. The first question to be determined is whether the relationship between the parties is such that the defendant even owes a duty of care to the plaintiff. If a duty does arise, the court will then consider the general terms for measuring the standard of care that is required of the defendant. The court will next look at the facts of the particular situation and will decide whether the defendant exercised that standard of care. While the duty to take care does not change from one situation to the next, the factors that determine what is reasonable are situation specific.

The Ontario government, through the Occupiers’ Liability Act, has created what can be referred to as a “duty relationship” between a store and its customers. The Act dictates the standard of care that an occupier, in this case Loblaws, owes to people like Mrs. Kerr. That standard is to take positive steps to make its premises reasonably safe for Mrs. Kerr and its other customers. However, the law does not seek perfection of an occupier, nor does it require unrealistic or impractical precautions against known risks.

The following facts were put into evidence to help the jury decide whether Loblaws had exercised reasonable care on the day Mrs. Kerr was in its store.
o Zehrs had a nightly cleaning program, whereby the floors were cleaned every night by an outside company.
o A produce department sweep log was in place at the store to document floor maintenance and inspections.
o It was expected that store employees would ensure that the floors were in “optimal condition” throughout their shift.
o Zehr’s had not put down floor mats in front of its grape display, despite this being its policy.
o The floor had been checked on two occasions the morning of Mrs. Kerr’s fall.

The Verdict
Despite the sympathetic nature of Mrs. Kerr’s claim, the jury concluded that Loblaws had taken reasonable care to ensure her safety.

This decision truly demonstrates how each case will be decided on its individual fact situation.

If you are the victim of a fall and you are injured, it is always best to seek legal advice in a timely fashion. A lawyer can help you decide whether you have a viable claim and if so can file a claim on your behalf.

For further information about this or any other legal question, please contact our firm.