IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100329

Docket: 09-3186

Registry:
Victoria

Between:

Margaret
Mann

Plaintiff

And:

Carol
Anne Rainsford and Charles David Fraser Rainsford

Defendants

Before:
The Honourable Mr. Justice R. D. Wilson

Reasons for Judgment

I.

[1]          
At the time material to this litigation, the defendants were “an
occupier of premises”, as that notion is defined in the Occupiers Liability
Act, R.S.B.C. 1996, c. 337.

[2]          
The plaintiff is a person who personally entered those premises.  While
on the premises, on 2 March 2008, the plaintiff fell, and sustained personal
injuries.

[3]          
The parties have agreed on the quantum of monetary damages arising from
those injuries, in the event the defendants are found liable.  The purpose of
the trial of the plaintiff’s action was to determine the sole issue of
liability.  I conclude the defendants are not liable.  The plaintiff’s action
is dismissed.  For the following reasons.

II.

[4]          
The premises in question contain a single family residential dwelling house. 
The house fronts on a municipal street.  It is set back some 30 feet from the
sidewalk on that municipal street.  Ingress and egress, from and to, the
municipal sidewalk and the front door of the house, is through a gated
corridor, some 7 feet wide, bordered by landscaping.  The ground slopes from
the high point at the threshold of the entry door, down to the municipal
sidewalk.  The change of elevation, over the 30 foot span of the corridor, is 3
feet.

[5]          
The corridor has been covered by cast-in-place, horizontally laid,
concrete slabs.

[6]          
The first slab abuts the exterior wall of the house, below the entry
door.  The slab extends 47 inches from the exterior wall.  Its width is 84 1/2
inches.  This slab was referred to by the parties as the “stoop”.

[7]          
Three slabs extending from the stoop are 78 inches long.  The fourth and
final slab, nearest the municipal sidewalk, is 87 inches long.  The four slabs
below the stoop are also 84 1/2 inches wide.

[8]          
The surface of the four concrete slabs below the stoop, are finished in
exposed aggregate.  At the material time, the surface was in good repair.

[9]          
To accommodate the change in elevation, the concrete slabs are
terraced.  This configuration results in a face, or leading edge, of each slab,
where it abuts the slab immediately below it.  The height of each of those
faces, or leading edges, is between 7 and 8 inches, approximately.

[10]       
Concrete planters are set on each side of each slab immediately above
the face or leading edge.

III.

[11]       
Mr. Rainsford testified that, from the front entry door, looking toward
the municipal sidewalk, the change in elevation was apparent.  As well, the
step down at the end of each concrete slab was readily apparent.

[12]       
During the period the defendants occupied the premises, they received no
complaints from visitors of any safety concerns about this entry walkway.

[13]       
Prior to acquiring the property in December 2007, the defendants
commissioned a report by a home inspector, Mr. Carey Smith.  Mr. Smith did not
report any indication that the entry walkway was unsafe.

[14]       
Ms. Rainsford testified that, from the front entry door, looking toward
the municipal sidewalk, the change in elevation was obvious.  She said that the
step down at the end of each concrete slab was visible from the front entry
door.  She said that during the period of their occupancy, the defendants had
never received any complaints from any visitors to the premises, including
elderly visitors and an elderly architect from across the street.  She said she
received no complaints from the realtors engaged to market the property of any
unsafe conditions in and about the premises, and in particular, about the
walkway.

[15]       
Mr. Carey Smith is the home inspector engaged by the defendants prior to
their acquisition of the premises in December 2007.  Mr. Smith testified that
his home inspections include an examination of the exterior ingress and egress
conditions, to enable him to comment on the facility of escape from the
dwelling house in the event of fire.  He said that the step down at the end of
each concrete slab was apparent both from the municipal sidewalk and from the
front entry door.

[16]       
Mr. Smith did not comment on this front entry walkway in his report to
the defendants.

[17]       
Mr. Smith knew the designer of the home, and walkway, during that
designer’s lifetime.  Mr. Smith said that this designer had designed homes
throughout the Saanich and Victoria areas.  Mr. Smith said that there are two
other residences with the same entrance design, one on Sea Ridge, the other on
Arbutus.  He said that there is nothing unusual about this entryway.  He said
that at the time he inspected the premises, there was no obstruction or
impediment to a clear view of the entry walkway from the front entry door.

[18]       
Mr. Rusen is a realtor.  He accepted the listing for the sale of the
defendants’ residence.  Mr. Rusen worked with Mr. Jabs, another realtor in his
office.

[19]       
The property was listed for sale in early February 2008.  During the
course of the marketing program, “several” open houses were conducted.  At
these open houses, the public was invited to attend the premises.  Mr. Rusen
said that on an average weekend, 12 to 20 couples, or 24 to 40 persons, would
attend an individual open house.  An indeterminant number of open houses were
held prior to 2 March 2008.

[20]       
Mr. Rusen said that the change in elevation from the front entry door
down to the municipal sidewalk was apparent.  He said he had no trouble seeing
the step down at the end of each concrete slab.  He said that he received no
complaints from any of the persons attending the open houses about the entry
walkway.

[21]       
On cross-examination, Mr. Rusen denied that this walkway was unusual. 
He said that the walkway is consistent with the house; a concrete surface is a
standard form of entry way; and that he was aware of several properties in the
region with similar entry way configurations.  He said that he had never seen
yellow lines painted on such an entry way to residential premises.

[22]       
Mr. Jabs was the other realtor acting with Mr. Rusen.  Mr. Jabs walks
with a cane.  He said that there was nothing unusual about the entry way at the
defendants’ premises.  He said that viewed from the front entry door to the municipal
sidewalk, the change in elevation was very distinct.  He said that to him, the
step down at the end of each slab was obvious.

[23]       
Mr. Jabs attended some of the open houses and said that he did not
receive any complaints about the walkway, from any persons attending those open
houses.

[24]       
He too said that he had never seen a residential premise with a concrete
entry way such as that at the defendants’ premises with yellow painting.

IV.

[25]       
The plaintiff’s home is across the street from the defendants’ premises. 
The plaintiff has lived in her home for some 20 years.

[26]       
On Sunday, 2 March 2008, she saw the advertisement for an open house at
the defendants’ premises.  As a matter of interest, she said, she decided to
attend the open house.

[27]       
At approximately 3:00 p.m. that afternoon, she entered the premises
through the gated walkway.  She said it was a bright sunny day.

[28]       
The plaintiff was in the residential dwelling house approximately
one-half hour.

[29]       
The plaintiff explained the mechanics of the incident, at her
examination for discovery, as follows:

92   Q  Tell me
what you did when you left the house.

 A   I
walked out of the front door and I stepped down the first step.  And I remember
I was looking at the garden.  And I tripped.  And I went to grab the handrail,
but there was no handrail there and I fell forward down the step.

…

96   Q  You said
you were looking at the garden?

 A   Mm-hmm,
yes.

97   Q  Which
area of the garden were you looking at?

 A   On the
left-hand side coming out.

98   Q  So the
right-hand side of the photograph, you were looking over that way?

 A   Yes.

…

100 Q  You didn’t
slip on anything, is that right?

 A   No.

101 Q  And you
didn’t trip on anything, did you?

 A   No,
there was no object there.

102 Q  You
misstepped, is that right?

 A   Yes.

…

128 Q  So you stepped off the landing onto —

 A   The step, yes.

129 Q  — down the first step, and you did that fine.

 A   Yes.

130 Q  So you got down onto, say, the second landing?

 A   Yes.

131 Q  And then you went forward?

 A   Yes.

132 Q  And then what happened?

 A   I tripped on that step, as far as I can remember.

133 Q  So you were looking at the garden to the left?

 A   Yes.

…

137 Q  Why did
you fall?  Do you know why you fell?

 A   It wasn’t
a normal configuration of steps going down, so I missed it.

138 Q  You just
went up it 30 minutes earlier.

 A   That’s
correct.

139 Q  So you
knew that there was a step and a landing and another step and a landing from
when you just went up 30 minutes earlier, right?

 A   I saw
it as I went up, but I wasn’t looking at the stairs as I came down, because I
don’t normally have to look and check to see where the steps are when you’re
going down.

140 Q  You knew
that this isn’t a staircase like at your house.  You knew that when you got
there and you knew that when you went to go up into the house, right?

 A   I saw
it when I went up.

141 Q  So you
knew that there were landings in between the steps and that you would have to
walk to get to the next step, right?

 A   Yes.

142 Q  I’m just
trying to find out what was surprising to you that it was the same on the way
out as it was on the way in.

 A   I
guess I hadn’t recalled the configuration when I left.

…

144 Q  So it was
the same on the way out as it was on the way in?

 A   Yes.

145 Q  It was
simply just that you misstepped when you left the house, isn’t that right?

 A   That’s correct, yes.

V.

[30]       
The plaintiff makes the following allegations in her statement of claim:

7.         The
accident was caused by the negligence of the Defendants, and the Plaintiff
pleads the provisions of the Occupier’s Liability Act, 1996, chapter
337.

8.         Particulars
of the Defendants’ negligence are:

 a) 
failing to provide a handrail for the stairs;

 b) 
in failing to provide a handrail, allowing the stairs to exist in a condition
that is contrary to the British Columbia Building Code and the City of Victoria
Building Bylaw;

 c) 
failing to mark the edge of each step in a contrasting colour to the remainder
of the surface in such a way as to draw the steps to a pedestrian’s attention;

 d) 
failing to post warning signs drawing attention to the existence of the steps;

 e) 
failing to take any care, or in the alternative, any reasonable care, to ensure
that the Plaintiff would be reasonably safe in using the Premises, and in
particular in using the stairs leading from the front entrance of the house to
the public boulevard on Regents Place in front of the Premises;

 f) 
exposing the Plaintiff to a risk of damage or injury from poorly marked stairs
lacking a handrail;

 g) 
failing to take any care, or in the alternative, any reasonable care to prevent
injury or damage to the Plaintiff from any unusual dangers on the stairs of the
Premises of which the Defendants knew or ought to have known;

 h) 
causing or permitting the stairs to be, to become, or to remain in a dangerous
condition and a danger and a trap to persons lawfully using the Premises by
virtue of the lack of a handrail and distinctive markings;

 i)  failing
to take any measures to eliminate the hazardous condition of the stairs and to
provide handrails and adequate markings, or in the alternative, any reasonable
measures to render the stairs safe to use when the Defendants knew or ought to
have known that the stairs were hazardous and in a dangerous condition;

 j) 
failing to take any measures, or in the alternative, any adequate measures,
whether by way of examination, inspection, or test or otherwise, to ensure that
the Premises were in a reasonably safe condition or to ensure that the stairs
were not dangerous to use; and

 k)  failing to give the
Plaintiff any warning, or in the alternative, any adequate warning of the
dangerous conditions of the stairs.

[31]       
None of those allegations have been established on the evidence.

VI.

[32]       
The plaintiff contends that the defendants’ entry walkway contravened
the then applicable B.C. Building Code.  That contention was founded upon the
opinion of Mr. Airton, a professional engineer.

[33]       
In his report, Mr. Airton asserts that the defendants’ entry way is a
“means of egress” as defined in the 1985 B.C. Building Code:

… means a continuous path of
travel provided by a doorway, hallway, exterior passage way, balcony, lobby,
stair, ramp or other egress facility or combination thereof, for the escape of
persons from any point in a building, floor area, room or contained open space
to an open public thoroughfare or to an exterior open space protected from fire
exposure from the building and having access to an open public thoroughfare …

[34]       
The municipal sidewalk, at the bottom of the defendants’ entry way, is,
said Mr. Airton, “open public thoroughfare”.

[35]       
Therefore, goes the argument, the defendants’ entry way is subject to
the B.C. Building Code.

[36]       
The B.C. Building Code does not define the noun “stair” or the noun
“step”.

[37]       
However, Mr. Airton argues, the concrete slabs on the entry way contain
rises and runs (or “treads”).

[38]       
Therefore, the concrete slabs are a “stair”, although, Mr. Airton said,
“it is an unusual stair”.

[39]       
To the contrary, Mr. Brown, also a professional engineer, provided an
opinion at the instance of the defendants.  Mr. Brown opines that the B.C.
Building Code is not applicable to the defendant’s entry way, because it is a
series of single steps, separated by sections of sidewalk or “landings”.  It
is, said Mr. Brown, a sidewalk system, not a flight of stairs.

[40]       
Notably, in his report, Mr. Airton refers throughout, to the entry way,
as “a sidewalk system”.  The first step to wisdom is getting things by their
right name.  I find “sidewalk system” is close to the accurate name for these
concrete slabs.  More particularly, they are a sidewalk system within a
landscape design.  To such structures, the B.C. Building Code does not turn its
mind.

[41]       
In common parlance, this entry way would not be characterized as a
flight of stairs or a stairwell.

[42]       
An analogous controversy arose in Wilson v. Dr. Andrew M. Rowe
Professional Corp., 2009 NBQB 72.

[43]       
There, the plaintiff fell while leaving the defendant’s professional
office building.  Conflicting opinions of professional engineers were entered
on the trial of the action.  One expert opined that there was a contravention
of the National Building Code, due to the absence of handrails from the walkway
there in issue.

[44]       
The other expert opined that the Code did not apply to the walkway in
issue.  At para. 5 of the opinion, the court said:

Dr. Rowe also had the site
inspected by an engineer.  The engineer points out that the provisions of the Code
requiring a handrail refers to “stairs”, a term which is not defined.  He
describes the front entrance as five consecutive pads which form a walkway from
the front door to the asphalt parking area at the side of the building.  He
says the pads “are soundly constructed and level, have non-slip surfaces, and
are in good repair.”  At page 10 of his report he provides a diagram which
shows that the riser from the first slab (at the door) is 7 1/4".  The
next three slabs leading to the side of the building have 7" risers and
the last riser, next to the driveway, is 2".  (Wilson fell at the first
7" riser.)  He says, “The walkway generally follows the gentle slope of
the ground adjacent to the walkway.”  He says the Code does not contain
provisions relating to “the design and construction of walkways, sidewalks and
driveways …”  In his opinion “the provisions of the NBC pertaining to stairs
are not intended to address the front walkway …”  He says that Part 9 of the Code
requires guards “where a difference in elevation to adjacent surfaces is more
than 600 mm. (2 feet).  All the surfaces adjacent to the concrete pads are less
than 2 feet (600 mm.) below the surface of the walkway, therefore no guards are
required” …  I find the opinion expressed by this engineer to be more
comprehensive and logical than that of the engineer hired by Wilson and I
accept his opinion that the walkway does not contravene the National
Building Code.

[45]       
Similarly, in this case, I find the opinion of Mr. Brown more logical
than the opinion of Mr. Airton and find that the defendants’ walkway does not
contravene the B.C. Building Code.

VII.

[46]       
Prior to 2 March 2008, given the experience of the defendants during
their occupancy of the premises, and the realtor’s experience during the open
houses, the risk of a person falling, on the entry way, to the defendants’
premises, was zero.

[47]       
However, neither the presence or absence of other falls, nor the
compliance or non-compliance with government regulations, are dispositive of
the issue of whether an occupier has performed to the standard of care prescribed
by s. 3(1) of the Occupiers Liability Act, that is:

3 (1)  An occupier of
premises owes a duty to take that care that in all the circumstances of the
case is reasonable to see that a person … on the premises … will be
reasonably safe in using the premises.

[48]       
In support of the contention that the defendants did not meet that
standard of care, in his report, Mr. Airton argues that at the time he attended
the premises, (3:30 p.m., 30 July 2009), “there were lots of flowers
growing alongside the sidewalk that cast their shadows across it.  Figure 4
shows a view down the path and thereon it can be seen that the edges of the
‘steps’ were difficult to see and this was contributed to somewhat by the
shadows cast by the adjacent vegetation.”

[49]       
He then states this proposition:

It is most likely that the
continuous exposed aggregate surface on the whole sidewalk system made it more
difficult for Ms. Mann to discern that the edge of a step existed because a
straight line across a sidewalk as the edge of a step would be often is a
control joint or expansion joint that are everywhere on city sidewalks.

[50]       
Mr. Airton’s arguments are not sound.

[51]       
According to the evidence, there was no foliage growing alongside the
sidewalk on 2 March 2008.

[52]       
There is no evidence of shadows cast on the sidewalk on 2 March 2008.

[53]       
Mr. Airton does not say he did not see the edges of the steps.  He says
the shadows made it more difficult to see.

[54]       
Ms. Mann did not testify that she had any difficulty discerning the edge
of a step, whether by reason of shadows, or otherwise.

[55]       
Mr. Airton makes the further argument that the edge of the stair should
have been identified by a contrasting colour, in the concrete on the slab
edges; or by painting a yellow line across the edges.

[56]       
The plaintiff argues that an interruption in the uniform colour of the
exposed aggregate would provide a visual cue to users of the walkway, that they
must be alert to something.

[57]       
I am not persuaded that a colour contrast is the only reasonable way to
alert a user of the walkway.  I find the change in elevation in this walkway
was obvious; the horizontal placement of the concrete slabs was obvious; and if
more was required, the placement of vertical planters, in a descending line, on
the leading edges of the concrete slabs, provided a reasonable visual cue to
users of the walkway, that one slab ended, and a new one below it was about to
begin.

[58]       
I find that the defendants did meet the standard of care imposed upon
them by the statute.

VIII.

[59]       
In any event, I find that the plaintiff’s injuries were caused solely by
her own inattention.  She was looking to her left at a garden, not looking
ahead where she was walking.

[60]       
Prior decisions in these occupier liability cases are all fact
specific.  Of all of the prior decisions relied upon and urged upon me by
counsel, I find Robson v. Trail Bay Developments Ltd., 2009 BCSC 806, to
be the most similar.

[61]       
The headnote to that case reads as follows:

Mall operated and owned by
defendants underwent major renovations and during course of construction
concrete ramp was built near mall entrance — plaintiff fell off ramp and
brought action in negligence and under provisions of Occupiers Liability Act
claiming that defendants breached duties owed to users of the mall — …
evidence showed that plaintiff looked into her purse to retrieve her car keys
as she approached the edge of ramp and fell approximately 2 inches to asphalt
pavement — surfaces of parking lot and ramp were in good condition,
demarcation between ramp and asphalt was not obscured, and sufficient warnings
existed such that area did not constitute unusual danger — painting edge of
ramp was not required by any applicable authority — plaintiff had opportunity
to observe height differential between ramp and asphalt parking surface as she
entered mall, and with minimal amount of attention edge of ramp and height
differential could be seen — plaintiff was under duty to be aware of her
surroundings, but her awareness was diminished by her search for keys —
plaintiff failed to demonstrate that ramp was unsafe or constituted unusual
danger, or that defendants were negligent.

[62]       
In dismissing the plaintiff’s claim, the court said, at para. 22:

I find that Ms. Robson has failed
to demonstrate on a balance of probabilities that the ramp was unsafe or that
it constituted an unusual danger.  The edge of the ramp was there to be seen. 
It was not seen because Ms. Robson was paying attention to extracting her keys
from her purse, rather than watching where she was stepping.  While perfection
might have seen the Defendants placing some sort of barricade at that side of
the ramp, the steps taken by the Defendants to assure patrons that the premises
were reasonably safe were more than sufficient in the circumstances.  There was
no unusual danger.  At the same time, Ms. Robson has not proven on a balance of
probabilities that the Defendants were negligent. …

[63]       
I adopt those observations as they apply to the circumstances of this
case.

[64]       
Costs will follow the event.

                   “R.
D. Wilson, J.”                    

The
Honourable Mr. Justice R. D. Wilson