02 Dec Fall Into Water at Marina is Plaintiff’s Own Fault

In the case of Esau v. Tansley, 2020 BCSC 1426, the Plaintiff was visiting a marina on a nice, sunny summer day. She and her husband stopped on the central dock to look at the menu sign for Dicks Fish and Chips (“Dicks”).  While looking at the sign, the Plaintiff fell into the gap between the dock and the float on which the building was located. She landed in the water, injuring herself.

The Defendant Nagra was the operator of the Marina. The Defendant Tansley leased a portion of the Marina from Nagra in order to operate Dicks. Since the Plaintiff had already discontinued her court action against Nagra, the issue for the judge was whether Dicks was liable for her injuries.

The Plaintiff’s claimed Dicks was responsible, as an “occupier” of the premises under the British Columbia Occupiers Liability Act.  The judge concluded that the central dock was not “occupied” by Dicks based on the following evidence:

1. The Dicks lease did not provide for any occupation by Dicks of any portion of the central dock;
2. Nagra did not permit Dicks to place any business materials, such as signage or set up tables on the central dock for its operations;
3. Under the lease, Dicks did not have responsibility for or control over the condition of the central dock, the activities conducted on the central dock, and the persons allowed to enter the marina and the central dock. Nagra was solely responsible for safety inspections, repairs and maintenance to the central dock. Dicks had no obligation to inspect, clean or maintain the central dock; and
4. Dicks’ contribution to common area expenses as part of the lease did not mean that Dicks was responsible for the repair and maintenance of the central dock and activities on it. Rather, it was Nagra who used those monies for that purpose as the landlord.

The central dock was a public walkway, used by the general public and all users of the marina. The judge noted that any user of the central dock with normal eyesight and comprehension could plainly see and understand the inherent nature of the marina and that it was necessary to look where one was stepping – including on the central dock – so as not to step off and into the water.

The judge found the Plaintiff was solely responsible for her fall and her injuries.

The Plaintiff’s action was dismissed and Dicks was awarded its costs.