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Occupiers' liability action dismissed; homeowner not required to police spouse leaving sandals on back stoop.
The plaintiff tripped over sandals left on the back stoop of the defendant's home by the defendant's wife.
The plaintiff sued the defendant under the Occupiers' Liability Act.
The court dismissed the action, finding that the defendant met the standard of care of a reasonable person in the circumstances.
The court held that an occupier is not required to police a capable adult spouse's habit of leaving sandals on a stoop, nor to warn visitors of such a habit.
The court also found that causation was not established and noted in obiter that the plaintiff would have been 25 percent contributorily negligent for failing to look where she was stepping.
Default judgment set aside due to arguable defence; motion to strike breach of trust claim dismissed.
The defendants brought a motion to set aside a default judgment and to strike the claim against the individual defendant.
The court found that the corporate defendant was properly served and the default judgment was not irregularly obtained.
Applying the Mountain View Farms test, the court set aside the default judgment, noting the defendants moved promptly and had an arguable defence, despite lacking a reasonable explanation for the default.
The court declined to strike the claim against the individual defendant, finding a reasonable cause of action for breach of trust was pleaded under the Construction Act.
The action was transferred to Small Claims Court, and costs were awarded to the plaintiff.
