In this slip and fall injury claim the plaintiff fell and fractured her wrist while walking on a sidewalk in Vancouver. The plaintiff claimed she fell due to snow and ice on the Sidewalk. The plaintiff discontinued her lawsuit against the City of Vancouver and the Strata. Therefore the only claim remaining was the negligence claim against the strata’s maintenance company. The sole issue for this summary trial was whether the maintenance company owed the plaintiff a duty of care. (Pavlovic v. The Owners, Strata Plan LMS 2211,2022 BCSC 1368)
Slip and Fall Lawsuit Basic Principles
First, the burden is on the plaintiff to establish a duty of care. Second, to the extent she relied on the contract between the strata and the maintenance company to establish a duty of care, the burden was on her to prove the contractual terms relied on. The following facts were not in dispute:
a) The Strata, as the owner of the residential property adjacent to the sidewalk, did not owe a duty of care to sidewalk users to remove snow and ice from the Sidewalk; and
b) The City, as the owner and person with control, has a duty to maintain the Sidewalk.
The framework for the duty of care analysis can be outlined as follows:
1) Does a sufficiently analogous precedent exist that definitively found the existence or non-existence of a duty of care in these circumstances? If not;
2) Was the harm suffered by the plaintiff reasonably foreseeable? If yes;
3) Was there a relationship of sufficient proximity between the plaintiff and the defendant such that it would be just to impose a duty of care in these circumstances? If yes, then a prima facie duty arises;
4) Are there any residual policy reasons for negating the prima facie duty of care established in question/step 3, aside from any policy considerations that arise naturally out of a consideration of proximity. If not, then a novel duty of care is found to exist.
Application of the Legal test to the Facts of the Case
The Judge concluded that the contract between the strata and the maintenance company did not oblige the maintenance company to maintain the sidewalk. Rather, it required the maintenance company, as a duty incidental to the central contractual obligation to maintain the strata premises, to discharge the Strata’s Bylaw obligation. The plaintiff had also specifically agreed with the following assertion set out in the notice of application:
The Applicant has never assumed or otherwise attempted to obtain or maintain physical possession of the municipal sidewalk where the Plaintiff fell nor have they attempted to control any activity or assumed any responsibility nor to control any activity or assumed any responsibility of the condition of the sidewalk, other than activities as required by the Bylaw.
Furthermore, there was no evidence that the maintenance company did anything that caused or contributed to the accumulation of snow and ice on the sidewalk at the time of the plaintiff’s fall. There was also no basis on which to find sufficient proximity between the plaintiff and the maintenance company to make it just and fair to impose a duty of care.
The maintenance company’s application was allowed under Rule 9-7(15). The maintenance company did not owe the plaintiff a duty of care and the plaintiff’s negligence claim was dismissed.
Always speak to a lawyer before starting or discontinuing a slip and fall personal injury claim.