A stout, upholstered chair may, at first blush, seem innocuous.
It's easy to ignore the warnings often recited by parents and
teachers to sit property when rocking back and forth on a
chair's legs. However, in Nerland v. Toronto-Dominion
Bank,1 the British Columbia Supreme Court reminded
us why the old adage dies hard.
In Nerland, the 61-year-old plaintiff took a seat on a
chair at a sit-down wicket at a branch of the Toronto-Dominion Bank
(TD). While a bank employee went off to complete the
plaintiff's transaction, the plaintiff leaned forward to pick
up some documents on the counter and the chair went out from under
him. He fell to the floor, striking his head, neck, shoulder and
elbow, suffering injuries.
The parties agreed on damages and the trial proceeded on
liability only. The chair at issue was upholstered with wooden legs
affixed with hard plastic tips. The floor around the sit down
wicket was tiled. The plaintiff argued that he did not tilt the
chair deliberately, but could not recall how the chair toppled.
There was no incident report or security video of the incident.
After the fall, the plaintiff claimed the branch manager suggested
there had been a prior incident and the bank had meant to put a mat
down in that area. He also testified that when he returned to the
branch a few weeks later, the chair had been placed on a mat.
TD retained an engineering expert to opine on the mechanics of
the fall, particularly, the degree to which the chair could be
tipped forward before it lost stability. Relying on the expert
evidence, the Court found that the plaintiff was seated in the
front half of the chair and deliberately tipped the chair onto its
front legs to reach the documents on the wicket counter.
After dismissing the plaintiff's claim under British
Columbia Occupiers Liability Act,2 the Court
assessed the negligence claim. The plaintiff submitted that tipping
the chair onto its front legs was normal, foreseeable human
conduct, and injury is likely to occur only where the tipped chair
slips out from beneath a person due to the plastic tips on the
However, the Court found that the chair tipped over because the
plaintiff intentionally raised the back legs over eight inches off
the floor, which required a conscious effort. Furthermore, the
Court was not persuaded that the bank manager made any comment
regarding prior incidents or the intention to place a mat in the
area. As a result, the Court concluded that, although TD owed the
plaintiff a duty of care, there was no breach of this duty in the
The chair provided to the plaintiff to sit on at the sit down
wicket was reasonably safe to sit on. I found no evidence of any
prior or subsequent incidents with similar chairs. The placement of
a mat under the chair at the sit down wicket at some point after
the plaintiff fell was not an admission of liability and I do not
find it a persuasive factor. I find the plaintiff exerted the
effort required to tip the chair forward onto its two front legs to
such a degree that it toppled out from under him. His action in
tipping the chair forward caused the fall, not the plastic chair
The Court noted that the plaintiff could have waited for the
bank employee to return and hand him the documents or he could have
stood up to reach across the desk for them. To prevent customers
from tipping chairs forward (or indeed backwards), the Court
commented, TD would either have to fix the feet of the chairs
permanently to the floor or appoint an employee to closely monitor
the activities of customers while seated in chairs.
As the manufacturer and retailer were not named in this
decision, it is not, strictly speaking, a products liability case.
However, the decision does consider the question of foreseeable
misuse of a product, finding that it was the plaintiff's own
intentional acts that created the danger and caused the chair to
fall, not the chair itself or the plastic tips.
This decision also confirms that although TD Bank owed the
plaintiff, its customer, a duty of care, the standard is
reasonableness, not the elimination of every possible
danger.4 Furthermore, remedial steps taken by a
defendant, like placing the impugned chair on a mat in this case,
is not necessarily proof that such steps were required to make the
premises reasonably safe. Lastly, and perhaps most practically
important, it reminds us to heed the advice we often heard at a
young age, "sit properly in that chair or you're going to
hurt yourself"! Unfortunately for the plaintiff in this case,
he was left to bear full responsibility for his injuries sustained
in the fall.
1 2016 BCSC 45 ["Nerland"].
2 R.S.B.C. 1996, c. 337 [the "Act"] (finding
that the chair was chattel and therefore outside the scope of the
3 Nerland, supra note 1, at paras.
4 Ibid at para. 67.
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The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
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