It has been snowy.
It has been slushy.
It has been drizzly.
It has been icy.
It has been icky.
It has been yucky.
It has been dreary.
It has been mucky.
How else would you describe slip and fall season? Few people in Ontario describe the weather in January as hot, humid and hazy, with blue skies and plenty of sunshine. It’s quite the opposite. The days are short. It seems like we haven’t seen the sun shine in weeks. It’s cold, damp, slippery, and dark.
Around this time of year, our law firm sees an uptick in slip and fall, and trip and fall cases. That’s not to say that slip and fall cases don’t happen year round. It’s just to say that in the winter months we see a spike in these sort of cases. Justifiably so. There’s no ice and better visibility in the spring and summer months. Ontario in the winter is full of icy, slush and snow related hazards.
In this instalment of the Toronto Injury Lawyer Blog, we would like to examine the critical importance which liability plays for a slip and fall, or a trip and fall case.
Just because you slipped, fell and really really really hurt yourself, does NOT mean that you will automatically have a successful slip and fall case.
Liability matter. Without establishing liability against the Defendant, the case will fail, regardless of the significance of the injuries.
Let’s take the example of a friend inviting you to their home for dinner. You slip and fall on their carpet. You slip and fall in the parking lot. You break your ankle really badly. In fact, the ankle fracture is so bad that you require surgery, along with screws and metal plates to fix the ankle together. The rehabilitation will take years along with many physiotherapy sessions.
The injuries are significant. The damages, income loss, along with the attendant care and rehabilitation costs are significant as well.
But simply looking at the injuries and the ensuing damages alone is not enough to make a successful personal injury case.
The Plaintiff needs to establish that the Defendant was liable (a fancy legal word for at fault) for the Plaintiff’s injuries.
Liability is not always easy to establish, especially in a slip and fall, or a trip and fall case.
Below is an analysis of two cases whereby the Plaintiff sustained very serious injuries in a slip and fall case, but was NOT able to establish liability against the Defendant. The result was that the case had to be dismissed against the Defendant (the Plaintiff lost despite sustaining very serious injuries).
Martin v. AGO et al, 2022 ONSC 1923 – Slip and Fall , action dismissed
o Plaintiff slipped and fell on a small amount of water on the floor inside a busy Court House
o Plaintiff was diagnosed with a torn hamstring
o There is CCTV of the fall
o Fall occurred in a high-traffic area
o After reviewing the video of the events of immediately prior to his fall, the Plaintiff conceded that four people walked in the area of the fall without gesturing to the water on the ground
o Volume of water on which Plaintiff slipped was very small
o Plaintiff’s submissions that cleaning staff failed to implement system of floor inspections
o “The standard is not one of perfection. The standard does not require that every possible danger be eliminated and nor does it require constant surveillance and instant response (Caron v. Omers Realty Corporation et al., 2019 ONSC 1374.)
o As it relates to causation, Judge said that even if the Defendants have NOT met the required standard of care, Judge also found that the Plaintiff has not proven that this fall would have been prevented, had the Defendants adopted a more vigilant system of maintenance
o Because the spill was such a small amount and not perceptible to numerous people it is “very doubtful” that the Plaintiff’s fall could have been prevented
o Plaintiff’s action is dismissed
Pardy v. Sears Canada Inc., 1996 CanLII 11731 (NL SC) – Action Dismissed
o Action for damages arising out of a fall in a department store
o Plaintiff slipped and fell on a spill in an aisle of a Sears
o Wearing rubber soled sneakers
o Plaintiff’s action was dismissed because the hazard caused by the water on the floor did not present an “unusual danger,” a test which is often applied to slip and fall cases involving private property owners
o Action was dismissed
Just because you slipped and fell does not mean that a magical surveillance camera has captured the footage. Even if a camera captures the footage, it does not mean that the footage will be preserved. This is especially true if a Plaintiff does not consult with, and retain a lawyer right away to request that the footage be produced and preserved.
There are no legal requirements on Defendant property owners to have cameras to capture slip and fall accidents to invitees to their property. Nor will the police come to private or to public property to investigate the cause or a slip and fall. This is not what the police service does. Perhaps someone from the City of local Municipality will attend at the premises to give a bi law infraction if the premises are not properly maintained, but this is not common and certainly does not happen with any immediacy like when you call the police, ambulance or fire department in the event of an emergency.
What can be helpful is contacting the ambulance for medical assistance in the event that the injury is very serious. Often, the paramedics will comment in their notes what they observe at the scene of the accident. If the area was icy, slippery, snowy or wet, if can show up in the ambulance call report. This can be very helpful evidence for your personal injury lawyer in establishing the claim for negligence against the Defendant. It will also be helpful for the Court in terms of better understanding the cause of the slip and fall accident.