Every winter in Ontario, people slip, fall and are injured on commercial property — parking lots, sidewalks, store entrances — often through no fault of their own.
In some circumstances, those injuries can give rise to a negligence claim against the owner or occupier responsible for maintaining the property.
Ontario’s Occupiers’ Liability Act (OLA) provides a mechanism for injury victims to sue the owners, tenants and managers of property for damages. Although the courts typically have higher expectations of commercial property owners than their residential counterparts, malls, shops and other businesses also tend to be well prepared to meet their inspection, maintenance and upkeep duties.
Recent court decisions underscore the fact that liability in slip-and-fall cases turns on the evidence and the specific circumstances of each incident. That is why having a slip-and-fall lawyer assess the facts — including maintenance practices, inspection records and timing — is essential to determining whether a viable claim exists.
In Merkley v. St. Lawrence College of Applied Arts and Technology, a 19-year-old student won his claim against a college and its contractor after breaking bones in a slip-and-fall on an icy sidewalk. Although the college had a thorough ice management plan, the judge found the defendants failed to implement it properly by applying pure salt even when the temperature dipped below the level at which it becomes ineffective, as it did on the morning of the plaintiff’s fall.
Meanwhile, in Sprowl v. First Capital, an 81-year-old woman was successful in her claim against a plaza owner and its winter maintenance contractor after slipping and falling in the parking lot. The judge in that case found that the maintenance firm’s salting and snow clearance system inadequately accounted for ice accumulating in parking spaces or between parked cars and that the owner had failed to inspect the work of its contractor.
Each case offers important lessons for victims and their slip-and-fall lawyers on how to challenge a commercial property occupier’s approach to winter maintenance.
The following five steps illustrate how negligence is typically assessed and proven in slip-and-fall cases involving commercial property.
Step 1: Name the correct defendants
Under the OLA, several parties could be considered the “occupier” of a commercial property. For example, possible defendants could include the business operating there, its landlord (if it doesn’t own the property), and other companies that they contract for snow removal or other winter maintenance.
A court could ultimately share the blame for a slip and fall among all or only some of these defendants, so your lawyer will need to ensure that everyone who could be liable is correctly named in your lawsuit.
Step 2: Review the winter maintenance system
Most commercial property operators have maintenance plans for dealing with snow and ice. However, simply having a plan is not enough to discharge a commercial property occupier’s duty of care to users to ensure they are reasonably safe while using the premises.
In the case of the plaza above, the judge found that the defendants’ snow removal, salting and inspection practices fell short. The adequacy of a winter maintenance system will change from case to case, depending on the precise nature of the property at issue, as well as traffic patterns and weather conditions.
For example, a high-traffic mall would be expected to clear its parking lot much sooner after heavy snowfall than a country store with fewer customers. Your lawyer can help you identify any gaps in a commercial property occupier’s approach in your case.
Step 3: Verify implementation
Even a flawless winter maintenance plan is useless if it’s not correctly implemented. The college case above is the perfect illustration of this point, since the agreement between the defendants called for the use of a chemical ice melt effective at very low temperatures. However, in practice, the parties departed from that plan and routinely used pure salt, despite its ineffectiveness at -10 degrees Celsius or lower.
One of the first things we request in slip-and-fall cases is the defendants’ maintenance logs for the period surrounding the accident. These records allow us to assess whether the required inspections and maintenance were actually carried out as set out in their ice and snow management system. Many snowplows now use GPS tracking, which can also show precisely where maintenance vehicles were — and when — in the lead-up to an incident.
Step 4: Check the weather
We also consult Environment Canada for its records of forecasts and actual conditions at the precise location of the accident, with a particular focus on rapid weather changes that often pose a danger, such as snow flurries and freezing rain.
Many slip-and-fall cases hinge on when hazardous weather occurred and what steps the occupier took in response. The more advanced notice an occupier had of severe conditions, the less tolerance courts tend to have for delayed or inadequate preventive measures.
Step 5: Take pictures at the incident site
Proving negligence is not only about showing that the defendant breached their standard of care.
You must also be able to show that their breach caused your injuries. Our clients often play a significant role in this area, especially if they were able to take pictures of the scene when they fell and collect the contact details of any witnesses.
Depending on the severity of your injuries, this kind of proactivity may not be realistic, but you may be able to ask a loved one to return to the scene and capture the conditions as best they can. The less time that passes, the better.
If you’ve been involved in a slip-and-fall accident in wintry conditions or you have any other concerns about a personal injury claim, at Edwards Pollard LLP.