Canada: The Thin Yellow Line: Are Remedial Steps Determinative?

Last Updated: August 8 2018
Article by Laura Emmett

The Supreme Court of British Columbia granted the City its motion for summary judgment in an action commenced by an elderly Plaintiff who sustained a slip and fall injury.

In Sapia v Invermere (District), the Plaintiff was an 82 year old woman who was a regular patron of the Invermere Seniors' Hall (the "hall"). The injury happened as the Plaintiff left the building and walked towards her vehicle. There was a gradual slope from the hall to the parking lot such that the parking lot at the end of the walkway was lower than the sidewalk by about six inches. The step up from the parking lot was about the same height as the standard curb. The Court noted that there was a noticeable difference in the colour between the walkway (light grey) and the parking lot (dark black).

The Plaintiff was familiar with the area where the fall occurred but could not describe how or why she fell. Expert opinion evidence tendered on her behalf concluded that because of seniors' decreased visual acuity, the absence of a warning yellow line to demarcate the elevated portion of the walkway was the reason for the fall. It was noted that since the fall, the area where the elevation changed had been highlighted by yellow paint.

The Court referenced Dahl v. Liberty Investments Ltd. ([1997] B.C.J. No. 461) which recognized that there was a high standard of care when it was apparent that the premises would be used by senior citizens. The Court added "there is a high standard of care imposed on an occupier of premises where the principal users have a decreased awareness of their surroundings."

The Court recognized that an occupier's conduct will be negligent if it creates an "objectively unreasonable risk of harm." The fact that the Plaintiff fell was not sufficient to establish liability. Remedial measures taken after an incident were also not necessarily determinative that such steps were undertaken to comply with a duty of care; it was only one factor to consider. The Court found that the Plaintiff must prove what hazard caused her to fall. One cannot speculate as to the cause.

The Court concluded that expert evidence was not necessary in this case as the expert provided commentary that was common knowledge. The Court found that judicial notice could be taken of the fact that as people age, their physical prowess, including visual acuity, declined. While not excluded, the expert report was "simply a piece of evidence to consider within the whole of the evidence."

The Court found that one way to assess the appropriate standard of care would be to ask if the existence of the yellow line would have alerted the Plaintiff to the drop in the sidewalk. The Court was satisfied that a yellow line would have provided such an alert. However, this did not end the analysis. The Court also considered whether there were any other cautionary alerts in the absence of a yellow line. The Court was satisfied that there was an alert even though it may not have been deliberately created for that purpose. The sidewalk and parking lot were of markedly different colours such that the edge of the sidewalk was apparent. The Court also found that the drop from the sidewalk to the parking lot was apparent. There was no need to mark or paint a yellow line to highlight what was apparent for everyone to see.

The Court concluded that the premises were reasonably safe and that the Plaintiff had not satisfied that the Defendants breached their high standard of care to ensure that the premises frequently used by senior citizens were reasonably safe.

While not binding in Ontario, the case serves as a reminder that an occupier's decision to take subsequent remedial actions to address potential hazards will not be determinative of liability. The burden remains on the Plaintiff to establish that an occupier breached their standard of care to protect individuals at a premises.

See Sapia v Invermere (District), 2018 BCSC 1145 (CanLII)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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