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Published January 11, 2019

You just sustained a serious injury in a slip and fall accident, what are your concerns?

Municipal Cases

Limitation Periods and Reasonable Excuse

If your slip and fall occurred at the municipal property, the Municipal Act states you have 10 days to provide a written notice to the Municipality. You have two years from the date of your incident to commence a legal action. The plaintiff does not have to provide a notice only if the plaintiff dies as a result of the injuries suffered, or a judge finds that a reasonable excuse for failure to provide this notice and the municipality is not prejudiced in its defence.

What can happen if you fail to give a notice?

  • Your action can be dismissed entirely;
  • You can be ordered to pay costs of the municipality for bringing this action;

What constitutes a reasonable excuse? It all depends on the facts.

  • Lack of knowledge is not a reasonable excuse;
  • Severe debilitating injury, physical or psychological where the person is incapable to give notice within 10 days of the incident;
  • Injury that initially seems minor, but in reality is more serious

 Does the City follow its own policy? Is this Policy effective?

Ms. Cerilli1, a 42-year-old lady, slipped and fell on a snow-covered and icy patch of sidewalk in the City of Ottawa, sustaining severe injury to her ankle. The Court held that the City of Ottawa did not follow their own quality standards as provided for the stress where she fell.

The court allowed the plaintiff’s claim in Dorschell v. City of Cambridge2 and held that the city’s policy was ineffective. The court considered the following factors:

  • The length of time the dangerous conditions existed;
  • The knowledge or imputed notice to the city of dangerous conditions;
  • The inherently dangerous condition of the sidewalk regardless of whether the snow was present;
  • The amount of pedestrian traffic expected in the particular street.

Limitation Period in Non-Municipal Cases

You have two years from the date of the incident to commence a legal action. The Occupiers’ Liability Act imposes a duty on the occupier of the premises to make sure that the property is reasonably safe for people entering the premises.

What are the facts of your case?

It’s important to have a clear memory of the facts surrounding your slip and fall accident. The facts will have to be presented to the defendant for their investigation. Here are the examples of questions that the defendant will be interested in:

  • What day of the week it happened?
  • Time of the accident?
  • What is the exact location of the accident?
  • Are you aware any witnesses?
  • What was the weather like when the accident occurred?
  • What footwear were you wearing at the time of the accident?
  • Do you wear prescription glasses?
  • Were you on medication at the time of the accident?
  • Did you consume any alcohol?
  • Were you familiar with the area?
  • Were you carrying anything in your hands?

Ambulance Report

Did you call an ambulance? Information about your accident can be obtained from your Ambulance Call Report.

Police Report

Were police called to the accident scene? Police officers often interview witnesses at the scene of a slip and fall accident and a General Occurrence Incident Report is usually prepared by the officer.

Photographs

It’s imperative to obtain photographs of the accident scene right after the fall. If you fell as a result of icy or snowy road conditions, it’s important to take the photos of the condition of the surface of the road before it is salted/sanded.

 CAN YOU PROVE THAT THE DEFENDANTS ARE LIABLE?

Procedure for salting/sanding

Was there a maintenance procedure in place?

A 75-year-old man, Mr. Fragomeni3, a won his case against a funeral home because there was no clear procedure in place between the funeral home and snow removal company.

Mr. Fragomeni slipped and fell in the parking lot of a funeral home after attending a funeral. He sustained a skull fracture and subsequent cognitive and behavioural problems.

The court concluded that there was no clear procedure in place between the funeral home and the snow removal company to determine who is responsible for deciding if and when to salt the parking lot. The Court further held that even if the funeral home and snow removal company had a system of snow and ice removal in place at the time of the plaintiff’s fall, the evidence suggested that the system was not working on the day of the accident. Though the parking lot was salted on the morning of the accident, the Court held that the salting had not occurred sufficiently in advance of the plaintiff’s arrival on the premises.

Is the system of maintenance reasonable for commercial establishment?

Ms. Flenti4, a 24-year-old women, slipped and fell in a restaurant parking lot of the defendant’s premises, suffering a broken leg which required two surgeries. The parking lot was snow-covered and slippery at the time of the accident.

The Court held that while the restaurant owner had normally been diligent and conscientious in maintaining the parking lot on his own, his system of maintenance was not reasonable for a commercial establishment at the time of the plaintiff’s accident. The Court further held that even if the restaurant owner had a reasonable maintenance system in place at the time of the slip and fall, it was not functioning appropriately on the evening of the plaintiff’s accident.

Ms. Tondat5 attended The Bay store to return a small vacuum cleaner. It had rained heavily earlier that day and continued to drizzle. Upon entering the store, she stepped on a black mat. When she stepped off the mat onto the tiled floor, she slipped and fell, breaking her knee cap. The plaintiff alleged that there was water on the floor and this was corroborated by her sister, who attended after the fall.

The Bay had contracted with Quinterra to handle cleaning services inside the store. Only one employee was assigned to clean the store on the day of the loss, and that employee only did “light duty” that day. There was no evidence that the employee had cleaned the area of the fall on the day of the loss. The plaintiff commenced an action against the Bay and Quinterra. Judgment was granted in favour of the plaintiff as against Quinterra.

The Judge also noted that there was no evidence that the area had been cleaned that day, nor was there any evidence of a safety system to abate the risk of a fall or a system to handle adverse weather conditions. To the contrary, the plaintiff established that Quinterra did not have a system for dealing with water hazards in the vestibule and that, even if it did, it was not working on the day of the loss.

Evidence of salt/sand on the ground

Mr. Dogan6, the plaintiff, was renting a room in a basement at 8 High Park Boulevard. It was a large house that had been converted many years before into a number of apartments. All of the rented premises other than Mr. Dogan’s room were on the first or second floor, and the tenants used the front door of the property to gain entrance to their units. M. Dogan fell sustaining numerous bodily injuries.

A number of photographs were taken after the fall by neighbours who provided them to Mr. Dogan four or five days later. These photographs showed the side of the joint driveway at 6 High Park Boulevard having been cleared of snow. The side of the driveway at 8 High Park Boulevard was not cleared, and the back of the house was not cleared of snow except for the portion under the overhang by the door.

The court found the defendants liable. The court held that there was a positive obligation on the owners to see that the snow and ice was removed in light of freezing rain that fell for two days prior to Mr. Dogan’s fall.

No warning of danger? “Wet floor” sign?

In Brown v. Marriott7, the plaintiff slipped and injured his back while walking through the lobby of a Marriott Hotel. When he entered the lobby, the floor was dry. However, while he was checking in with a clerk at the reception desk, with his back to the lobby area, a cleaner mopped the floor and placed a wet floor sign in the middle of the room. After he was finished speaking with the desk clerk, he was directed to the elevator.

As he walked across the room, both feet skidded but has was able to regain his balance without falling. He was not aware that the floor has been mopped, and, at no time was he verbally warned that the floor had just been mopped. The training provided by Marriott required the desk clerk checking the plaintiff in to inform him that the floor may be have been wet and to be careful. The cleaner was also required to dry mop the floor to reduce excess water. The defendants brought a summary judgment motion to address liability. The court concluded that Marriott failed to meet its duty of care and was liable for the plaintiff’s injuries.

The Judge noted that to be effective, a sign, such as the wet floor sign set up by the cleaner, must be visible to the person it is intended to protect. However, the plaintiff was unable to see the sign and the cleaner even moved it away from the plaintiff, making it less likely he would see it while walking to the elevators The Judge also noted that the cleaner created a dangerous situation and failed to adequately warn the plaintiff, which could have easily been done through a verbal warning.

The Judge also found that mopping the floor created a wet and slippery surface behind a guest, who had his back turned and was unaware that the floor was being cleaned. This created a reasonably foreseeable risk in the circumstances that required the defendant employees to warn the plaintiff of the danger. Furthermore, the Judge stated that the plaintiff did not have a chance to avoid the danger in the absence of appropriate warnings. The Judge also stated that a verbal warning by the cleaner or desk clerk would have been simple, cost-effective and convenient.

Entrance area/ice formation

In Nickell v. Windsor8, Ms. Nickell went to the library to exchange books. As she was coming out, she slipped on the highest step and fell, sustaining very serious injuries, due to ice formation on the stairs. The Janitor for the library, Mr. Gorrie, confirmed that ice was forming from a drip from the eavestrough. Justice Lennox commented that the ice from a drop does not form in a regular mathematical way. Rather, it thickens where the drop lights, and, assuming a level surface, spreads from that point in every direction creating a dangerous condition. The library was found liable for the injuries sustained by the plaintiff. The defendant’s appeal was dismissed.

You may only partially win the case

What does it mean “partially winning” the case? In Henhawk v. Branford (City)9 , the plaintiff sued the City of Branford after tripping and falling in the parking garage owned by the City of Branford. The defendant had applied yellow paint to many of the curbs in its parking garage but not to the area where the plaintiff tripped and fell.

The plaintiff won the case, but the Court decided that the negligence should only be attributed 2/3rds to the defendant. The plaintiff’s damages were reduced.

Ms. Litwinenko’s damages were reduced to 50% in Litwinenko v. Beaver Lumber   Company10 as she came to the store on regular basis and was familiar with the trip hazard.

CONCLUSION

To sum this up, each case depends on its facts. Only an experienced personal injury lawyer knows whether your case can be successful. Call MG LAW for a free consultation.

1  Cerilli v Ottawa, [2006] O.J. No. 4850 (Ont. S.C.)
Dorschell v. City of Cambridge (1980), 30 O.R. (2nd) 714 (C.A.)
3  Fragomeni v. 1080486 Ontario Corp. (c.o.b. Ward Funeral Home Ltd.) [2006] O.J. No. 1630 (Ont. S.C.)
4  Flentje v. Nichols, [2006] O.J. No. 3836 (Ont. S.C.).
5  Tondat v. Hudson’s Bay Company , 2017 ONSC 3226 (CanLII)
6  Dogan v. Pakulski, 2007 CanLII 17027 (ON SC)
7  Brown v. Marriott, 2016 ONSC 7619 (CanLII)
8  Nickell v. Windsor, 1926 CanLII 360(ON CA)
9  Henhawk v. Brantford City, [2005] O.N. No. 5140 (Ont. S.C.)
10 Litwinenko v. Beaver Lumber Company, 2006 CAN LII 28740 (ON C.A.)
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