IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130514

Docket: S114158

Registry:
Vancouver

Between:

Holly
Ann Wickham

Plaintiff

And

Cineplex
Inc. and
Anthem Properties (1993) Ltd.

Defendants

Before:
The Honourable Mr. Justice Sigurdson

Reasons for Judgment

Introduction

[1]            
This is an application by the defendant under Rule 9-7 of the Supreme
Court Civil Rules, B.C. Reg. 168/2009 for summary dismissal of the
plaintiff’s claim.  The plaintiff seeks judgment on the issue of liability
under the Occupiers Liability Act, R.S.B.C. 1996, c. 337 (“OLA”),
or the common law of negligence.

[2]            
The application only dealt with the issue of liability.  If the
plaintiff is successful, the issue of damages will have to be determined.

[3]            
The action arises from a slip and fall on January 12, 2010 in the
parking lot of the Station Square shopping complex on Mackay Avenue in
Burnaby.  The plaintiff tripped while crossing a parking lot median when she
was attempting to return to her parked vehicle.

[4]            
The defendant Anthem Properties (1993) Ltd. (“Anthem”) is the property
manager.  Anthem is responsible for the management, operation and maintenance
of the parking lot including the median where the plaintiff fell.  The action
against Cineplex Inc., the owner of the theatre in the mall, has been
discontinued.

[5]            
The claim is brought in negligence and under the OLA against
Anthem for failing to take proper care in the design, installation, and
maintenance of the median; failing to post adequate warning of the hazard posed
by the median; and/or failing to provide adequate lighting in the area of the
median.

Facts

[6]            
On January 12, 2010 the plaintiff took her husband and children out for
a movie and went to the Cineplex-operated Famous Players Station Square Cinema
at the Station Square shopping complex in Burnaby.  At around 4:30 p.m., the plaintiff
drove her car into the parking lot to see a 5:00 p.m. movie.  The parking lot was
located immediately in front of and to the north of the entrance to the building
containing the cinema.

[7]            
Ms. Wickham drove her four-door sedan into the parking space
closest to the theatre entrance.  She drove her vehicle front end first into
the parking space.  Her husband was in the passenger seat.

[8]            
There was a row of parking spaces facing each other.  Her car was next
to the median in a space that was in the east row of cars, and at the south end
of the row closest to the cinema.  To the left of her vehicle, or to the south
of her vehicle, was a raised median that separated the parking spaces which
face each other in an east-west direction from the travelled portion of the
parking lot.

[9]            
There was a curb around the median and the part that was adjacent to the
area in the parking lot where the traffic circulated was painted yellow to
identify it for traffic in the parking lot.

[10]        
The median ran in an east-west direction, and to the north of it were the
parking spaces.  The median was about the length of two cars facing each other
(about 6 metres).  There were two trees on the median, approximately next to
the driver’s door to the east and next to the front passenger door to the
west.

[11]        
The tree on the median on the left of the plaintiff driver’s side of the
car (or to the south) was adjacent to where the plaintiff’s vehicle was parked
and approximately near the driver’s door.  The part of the median closest to
the plaintiff’s parking spot was not covered by shrubs but to the west of the
tree on the median was a gravel pathway across the median that apparently could
be used by the driver to cross the median to get to or from his or her car.  Other
than the tree and the gravel path, across the median to the east of the tree were
large and uneven decorative stones spaced throughout the median adjacent to the
plaintiff’s parking space.

[12]        
When the plaintiff got out of her vehicle which was then immediately
next to the median, she crossed the part of the median closest to the rear of
her vehicle.  She crossed the median between the tree and the end of the
median.  This involved walking over the raised decorative stones.  She had no
difficulty crossing the median on the way out to the theatre.  She did not trip
or stumble.

[13]        
The weather was cloudy and dry when the plaintiff got out of her car.

[14]        
When the movie ended at about 7:00 p.m., the plaintiff and her family
left the theatre.  It was raining and, given the time of the year, it was nightfall. 
She could see her car as soon as she exited the mall.  She walked directly to
the vehicle which was in the closest non-handicapped parking space to the
entrance to the mall where the theatre was located.

[15]        
The plaintiff crossed the median to return to her car.  She did so in
the same area that she crossed when she left her vehicle.  She saw the stones
that she was walking across and said that she thought to herself it was a
“ridiculous design”.  While she said she had no difficulty navigating the
decorative stones on the way to the movie, on the way back, she stepped on the
stones and fell.

Parties’ Positions

The Defendant Anthem’s Position

[16]        
The defendant submits that the action should be dismissed.

[17]        
Although Anthem acknowledges that it was an occupier and owed a duty of
care, it says that the plaintiff has failed to establish the requisite standard
of care, failed to prove that Anthem breached the standard of care, and failed
to show that any breach was the proximate cause of any injury to the
plaintiff.

[18]        
The defendant says that the primary purpose of the median was traffic
control, and in any event the path across it was free of debris.  The median
allowed parkers to cross it on a maintained gravel path and that in the seven
years the defendant was operating the parking lot there had been no complaints
about the median.

[19]        
The defendant says that the parking space had a distance of a foot between
the south side of the parked car and the median that allowed the driver to move
alongside the car to enter or exit.  The defendant says that no warning or the
placing of some other surface material is required for the median given that
there was a path beside the tree and because an adult entering or leaving a car
would not need to be warned about the risk of apparent uneven surfaces.  The
defendant says that the onus is on the plaintiff to keep a reasonable outlook
and take reasonable care.  It says the plaintiff is the author of her own
misfortune as she crossed the median diagonally instead of going to her car
along its side or by taking the gravel path if she chose to cross the median. 
The defendant says that the plaintiff chose to take the shortest route, which
was over the uneven stones, which she saw, and as such the defendant’s conduct cannot
be the proximate cause of her injury.

The Plaintiff’s Position

[20]        
The plaintiff seeks judgment on liability.

[21]        
The plaintiff says that she has established that the defendant was an
occupier, which is not challenged, and that it breached its duty to use
reasonable care to ensure that a person using the premises would be reasonably
safe.  The plaintiff says that the defendant knew or ought to have known that a
person exiting or returning to the parking space used by the plaintiff would
cross the median because of the narrow space between the car and the median. 
The plaintiff says the defendant’s knowledge that the median was used for
access and egress from the space is demonstrated by the fact that there was a
gravel path used by people crossing the median for that purpose.  The plaintiff
says the defendant ought to have been aware that people would be walking over the
uneven stones on the median to get to their vehicles.

[22]        
The plaintiff says the defendant was negligent in a number of ways:  it failed
to post a warning or properly illuminate the so-called gravel pathway next to
the tree and the uneven stones; or it failed to put shrubbery on the median to
restrict passage; and, in any event, it failed to provide a level surface of
gravel, flat stones or concrete on the median.  Knowing that there was
pedestrian traffic across the median, the plaintiff says the defendant knew or
ought to have known the uneven rocks posed an unusual danger, particularly to
first-time visitors such as the plaintiff.

[23]        
The plaintiff says her fall on the rocks was either due to their wetness
or their unevenness, and that in either case, the defendant’s breach of duty
was the proximate cause of the plaintiff’s fall and injury.

Discussion

[24]        
The sole issue is liability.

[25]        
The question on this summary trial application is whether the action
should be dismissed on the ground that the plaintiff has failed to prove that
the defendant breached the OLA or was negligent, and if so, whether as a
result the plaintiff was injured.

[26]        
The statutory duty imposed on occupiers is set out in
s. 3 of the OLA:

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, and the person’s property, on the premises, and property on the
premises of a person, whether or not that person personally enters on the
premises, will be reasonably safe in using the premises.

(2)        The duty of care referred to in subsection (1)
applies in relation to the

(a)        condition
of the premises,

(b)        activities
on the premises, or

(c)        conduct
of third parties on the premises.

(3)        Despite subsection (1), an occupier has no duty of
care to a person in respect of risks willingly assumed by that person other
than a duty not to

(a)        create
a danger with intent to do harm to the person or damage to the person’s
property, or

(b)        act
with reckless disregard to the safety of the person or the integrity of the
person’s property.

[27]        
There is no issue that the defendant is an occupier and that the
accident occurred on premises for which the defendant had responsibility.

[28]        
The issue is whether the plaintiff has established the requisite
standard of care and a breach by the defendant which was the proximate cause of
the plaintiff’s injury.

[29]        
The general principles pertaining to the OLA were described in by
Justice Gray in Fulber v. Browns Social House Ltd., 2013 BCSC 1760 at para. 28:

A useful summary of the law is set out in Wilde v. The
Cambie Malone Corporation, 2008 BCSC 704.  I accept Ms. McCullagh’s
summary of that, and I am just going to read her summary of some of the
principles stated in the Wilde case:

(a)
The goals of the Occupiers Liability Act are to promote
positive action on the part of occupiers to make their premises reasonably
safe.

(b)        The
duty imposed by the Act is to take reasonable care in the circumstances
to make the premises safe. The duty does not require occupiers to ensure that
persons using the premises will be absolutely safe.

(c)        The
care that must be taken by an occupier differs according to the nature and use
of the premises.

(d)        The
onus is on the plaintiff to prove on a balance of probabilities that the
defendant breached this duty of care. The fact of injury does not create a
presumption of negligence. The plaintiff must be able to point to some act or
failure on the part of the defendant which resulted in the injury.

(e)        This duty of care does not
extend so far as to require the defendant to remove every possibility of
danger. The test is one of reasonableness, not perfection.

[30]        
The fact that the burden of proof is on the plaintiff and there is no
presumption of negligence when a person is injured on premises was expressed in
Foley v. Imperial Oil Ltd., 2011 BCCA 262 where Smith J.A. said at para. 30:

…The burden of proof in establishing liability under the Act
was described in Kayser v. Park Royal Shopping Centre Limited (1995),
16 B.C.L.R. (3d) 330 (C.A.) as follows:

[13]      The onus of proof on a plaintiff to prove the
liability of a defendant on a balance of probabilities in a standard negligence
action also applies in cases arising under the Occupiers Liability Act. As
Wood J.A. held in Bauman v. Stein (1991), 78 D.L.R. (4th) 118 (B.C.C.A.)
at 127:

Section 3 of the Occupiers Liability Act does not
create a presumption of negligence against “the occupier of the premises”
whenever a person is injured on the premises.  A plaintiff who invokes that
section must still be able to point to some act (or some failure to act) on the
part of the occupier which caused the injury complained of before liability can
be established.

[31]        
There was no specific evidence about the normal maintenance or design of
medians adjacent to parking spaces or the usual standard of care for medians
that are used in commercial parking lots.  I received some evidence of the fact
that there had been no previous complaints with this median and I was shown a
photograph of a median at another mall in Vancouver.  I recognize that in
considering whether the defendant used reasonable care to ensure the plaintiff was
reasonably safe I can consider whether there were other slip and falls.  One factor
to consider is that many others had passed this way without incident:  see Cahoon
v. Wendy’s Restaurant of Canada Inc., 2000 BCSC 629 at para. 16; Scriven
v. Crescent (Pacific No. 240) Branch of The Royal Canadian Legion, [1985]
B.C.J. No. 84 at para. 5 (S.C.); and Crerar v. Dover, [1984] 3
W.W.R. 236 at paras. 22-27 (B.C.S.C.), aff’d [1986] 2 W.W.R. 562 (B.C.C.A.).

[32]        
I accept that the defendant was not aware of other slip and falls on the
median.

[33]        
There was no evidence of the standard of care for the design or
maintenance of medians at mall parking lots, nor was there evidence of what
would constitute a breach of that standard.  That is not conclusive on the
issue of liability.  I am able to find whether the maintenance or design of this
particular median is in breach of the reasonableness standard of care without
evidence of standard practice or expert evidence.

[34]        
The case at bar involved the use of a median, at least in part, as a
pathway to and from a particular parking space, and not just as a boundary for
parking spaces and a guide for vehicular traffic.

[35]        
Unlike the part of the median that was adjacent to the parking space facing
the plaintiff to the west, which had shrubbery around the tree next to that
spot that deterred foot traffic, on the part of the median to the east was a
pathway next to the tree and uneven large decorative stones throughout the east
half of the median.

[36]        
I have concluded that the defendant knew that people regularly crossed the
pathway on the median to get to the driver’s door and perhaps to the back
passenger door as well.  It is not disputed that the defendant knew that the
median was used as a pathway to get from this parking space to the mall, but
the defendant’s position, as I understand it, is that pedestrians would and
were expected to walk on the gravel path near the tree or walk beside the car
alongside the median.

[37]        
I find that given its knowledge of people crossing the median, the
defendant had a duty to make it reasonably safe.

[38]        
I do not think that the defendant could take issue with the fact that it
had an obligation to use reasonable care with respect to the path on the
median.  It knew that people walked there, I think, regularly.  The defendant
takes issue with what it says is the unreasonable contention that it should
have known a pedestrian would access the parking space in question by going
across the uneven rocks, or, that if a person did do so and fell, that there could
be any liability because the risk would have been apparent given the nature of
the surface the person was crossing.

[39]        
I looked at several cases that discuss liability when pedestrians fall using
a route that could be described as not the usual or normal route for ingress or
egress.

[40]        
The case at bar does not present a situation where a pedestrian was walking
in an area where pedestrians are not anticipated at all.  It is a case where
the defendant knew that pedestrians walked on the median, at least on the small
gravel path rather than on the part of the median where the plaintiff fell.

[41]        
The median is about six meters long and one meter wide, with a four inch
yellow curb painted on its outer edge.  The median has two trees, a pathway
adjacent to one of the trees, and raised stones.

[42]        
Although it was possible to exit the parking space by walking along the
car, or by walking along the raised curb of the median, there would only have
been about a foot or so of space between the plaintiff’s car and the median.

[43]        
The defendant relies on Lane v. Regina (City), 2007 SKQB 414.  There,
the plaintiff suffered injuries when he tripped and fell on the crumbling concrete
part of a median that divided the east and west bound lanes of College Avenue
in Regina.  Hrabinsky J. dismissed the claim and said, at paras. 32-33:

In the case before me, I find that the median was in a
reasonable state of repair given its character and location.  This median is a
device to control traffic and any minor wearing of the concrete or paving
stones did not detract from that purpose.  I find that the defendant did not
know nor should the defendant have known of the disrepair if there be any
disrepair.

I find that even if the traffic
median where the accident occurred was meant to be walked on by pedestrians, a
pedestrian could safely cross the median if he or she exercised reasonable
care.  My conclusion is reinforced by the plaintiff’s evidence that on most
days when the weather was nice, he would walk the same route, sometimes
crossing College Avenue on the west side and sometimes on the east side,
without any problems in relation to the curbing where he fell on July 24, 2002.
The plaintiff was well aware of the condition of the area where the accident
occurred.  He had traversed this section of the median on a number of occasions
prior to the date of the accident.  He had alternatives in that he could have
crossed the street and walked in the area marked as a pedestrian crosswalk.  Further,
the defendant had received no complaints about this median in the eight years
prior to the plaintiff’s accident, and there were no other reported incidents
of injury.

[44]        
The point, the defendant says, is that a median is not expected to be
kept in the same condition as a sidewalk.  The defendant says that the purpose
of a sidewalk is the passage of pedestrian traffic, while the purpose of a
traffic median is the division of vehicular traffic.  That may be so, but here
the median, at least in part, also served as a sidewalk.  If not designed that
way, it had become that way, and the path across the median at least provided a
form of sidewalk for the driver of the vehicle.  Unlike the part of the median
adjacent to the opposite facing parking spot, there were no shrubs that
prevented people from using the median for pedestrian traffic if they chose to
walk over the uneven stones.

[45]        
The defendant says that it cannot be held to a standard of care that makes
it responsible for every possible mishap.  That is correct, but I do not find
it surprising that a person would walk across the median to get to the
theatre.  It would not be surprising if a person fell on the gravel path on the
median if it had loose stones or potholes.  However, was it surprising that
someone would be walking across the median on the side of the tree, away from
the narrow gravel path, which was covered with large uneven stones?

[46]        
The defendant says that the median was designed like other medians in
the Lower Mainland to separate parked cars from vehicular traffic, but the
evidence in that regard was limited.  There was a picture of a median in another
parking lot without evidence of the accident history at that location, or any
evidence of the normal practice of designing medians, or whether they are
designed with paths, shrubs, smooth stones or concrete or uneven stones, or in
some other fashion.  However, the absence of complaints or accidents on this
median is some evidence of the absence of negligence on the part of the
defendant.

[47]        
The defendant says that in these circumstances — the parking lot was lit,
the path to the car was visible if the plaintiff wanted to take a route across
the median, and the risk of walking on wet or uneven rocks was apparent – any
adult person can be said to know the risk of walking on wet and uneven stones.

[48]        
I turn to the evidence on these points, namely, the issue of the
lighting; the plaintiff’s knowledge of the gravel path, and the risk of walking
on uneven and wet stones.

[49]        
The plaintiff deposed in her affidavit that her view of the bare patch (the
gravel path) was obscured by the tree planted in front of it in the centre of
the median, and that the parking lot lighting was not sufficient to draw her
attention to the bare patch on the median.

[50]        
The plaintiff deposed that as the parking spot was the same as the other
spots, there was no “Small Car only” warning; there was no impediment such as a
fence or hedge or shrubs to prevent pedestrians going over the median; she did
not notice the non-rocky bare patch at the time of the accident; and she now
realizes that the bare patch was blocked by the open door of her vehicle.

[51]        
The plaintiff was aware of the purpose of the median.  She deposed that
as far as she could tell, the only purpose of the median was to guide vehicular
traffic around the parking area, and that it was not there to govern pedestrian
traffic.

[52]        
If an occupier is aware that people are using unconventional means of
access or egress, they may have a duty of care to make them reasonably safe.

[53]        
In Saunders v. Calgary (City), 2007 ABQB 743, aff’d 2008 ABCA 380
the plaintiff slipped and fell in an area between a parking lot and a
community centre.  The court said, at para. 37:

The Defendant had a duty to make
the gravel parking lot a reasonably safe route to walk and to make the
east-west pathway a reasonably safe route to walk.  The Defendant knew that the
gravel parking lot would be used by pedestrians exiting from their motor
vehicles to access the building.  If the Defendant believed the east-west
pathway was not used by pedestrians and as a consequence did not clear it of
ice and snow, it had a duty to blockade this route or place warning signs
advising of the presence of snow and ice.

[54]        
In Whitney v. University College of the Cariboo, 2004 BCSC 1110,
the plaintiff college student took a shortcut through undeveloped land to hand
in a university assignment.  The college was using the undeveloped area as a
holding area for trees with wire baskets around the roots.  Because of its
knowledge that the students used the area, the college was held to have assumed
a duty to keep the area clear of its own wire.  Truscott J. held, at para. 71:

…once the college introduced a
non-natural object into the area, knowing that students were using this trail,
and allowed the students to use this trail without objection, the college
assumed the duty of at least keeping this trail clear of their own wire.

[55]        
The plaintiff has not shown that the defendant was aware of people who
were using the parking lot crossing the median over the uneven stones.

[56]        
However, even if an occupier owes a duty of care to keep an
unconventional means of access or egress reasonably safe, and has breached its
standard of care by not addressing a hazard present in this area, it may not be
negligent in the event the danger is apparent and known to the pedestrian.  In
such a case, any lack of care is not the proximate cause of the plaintiff’s
injuries.

[57]        
In Mather v. Westfair Foods Ltd. (c.o.b. Extra Foods), 2004 BCSC
449 the plaintiff perceived that her route to the defendant’s grocery store was
blocked by parked cars.  Although there were other entrances, the plaintiff
elected to walk over a snow bank and fell, suffering injuries.  Her action was
dismissed by Stewart J. who said, at para. 22:

Is there evidence in the case at
bar of anything peculiar to the nature, shape, consistency, content or
appearance of the snow bank on Baker Street that ought to have resulted in
action being taken by an employee of the defendant to prevent, eliminate or warn
of danger beyond that inherent in walking over a snow bank that exited onto a
downhill slope?  No.  Nothing.  And only binding authority from above
could result in a ruling by me that an occupier must warn people about the
“inherent” danger just noted.  And no such binding authority was brought to my
attention at this trial.

[58]        
In the case at bar, the defendant knew that drivers crossed the median
to exit and enter the area where they parked their vehicles.  The defendant
owed a duty to take reasonable care to make it reasonably safe for pedestrians
to cross that median.  They fulfilled that duty through the gravel path that
was properly maintained and provided a means of access for the plaintiff to and
from her car.  Knowing parkers used the path across the median, was there a
lack of reasonable care to have the median in part covered in uneven stones? 
While the defendant could have chosen another type of surface, given that
parkers might choose to walk there, the standard is not one of perfection.  I
find that the plaintiff has not demonstrated a lack of reasonable care on the
part of the defendant.

[59]        
Moreover, the plaintiff chose to cross the median initially over the
stones and returned that way.  I think that the risk of walking on uneven, wet
stones was clear to the plaintiff.

[60]        
The plaintiff deposed that she did not see the path on the way out of
her car because her car door blocked her view of the path.  Her evidence was
that on the way back she did not see the path because of the lighting.  I am
not persuaded, regardless of whether she saw the path, that it was reasonable for
her to have crossed over the stones, which when wet posed an obvious risk.  The
plaintiff saw the uneven stones, knew that they were wet and in fact thought
that the median with these stones was “a ridiculous design”, but she
nevertheless took the obvious risk.

[61]        
The plaintiff could have accessed her car by going alongside or along
the curb next to her car.  I am not persuaded that it was inappropriate for the
plaintiff to have tried to access her car in the usual fashion by going along
its side either by walking on the ground or on the curb along the median.  She
did not try but walked across what she knew were the uneven stones on the
median.

[62]        
In all of these circumstances, and keeping in mind that the standard is
not one of perfection, I find that even though arguably the defendant might
have acted differently, it took the care that was reasonable to see that a
person using its premises is reasonably safe.

[63]        
I have concluded that in any event any lack of care on the part of the
defendant by the manner of design or maintenance of the median with a path and
uneven stones was not the proximate cause of the plaintiff’s fall.  I think
that the plaintiff’s failure to use reasonable care in light of an obvious risk
of walking over wet uneven stones was the proximate cause of her injury.

[64]        
Accordingly, I have concluded that the plaintiff’s claim must be
dismissed.

[65]        
Given that there was no authority that was factually close to the facts
of this case, I am inclined to order that each side bear its own costs, but if
the defendant seeks costs counsel has leave to make submissions and may arrange
to appear before me through the registry.

“J.S. Sigurdson J.”
The Honourable Mr. Justice J.S. Sigurdson