Zanivan et al. v. White [Indexed as: Zanivan v. White]

75 O.R. (3d) 50

[2005] O.J. No. 1099

Dockets: C41969 and C41964

Court of Appeal for Ontario,

Weiler, Moldaver and MacFarland JJ.A.

March 29, 2005

Negligence -- Failure to supervise children -- Five-year-old child playing with mother's cigarette lighter -- Fire damaging multiple units in apartment building -- Mother negligent in failing to reinforce instructions about the dangers of fire.

On May 4, 2001, CW was told by a neighbour that he had seen her children playing with matches. The next day, at 7:30 a.m., while CW was sleeping, her five-year-old son, KW, started a fire with a cigarette lighter. The fire damaged multiple units in the apartment building in which the Ws lived. CW was sued for her negligence in failing to supervise her children and, after a jury trial, she was found liable. She appealed. [page51]

Held, the appeal should be dismissed.

It was open to the jury to accept the neighbour's evidence and to find that, in the circumstances, the mother was obliged to reinforce her instructions about the dangers of fire and that she failed to do so. As a result, it was open to the jury to come to the verdict that she was negligent in failing to supervise her children and the verdict was not unreasonable. Accordingly, the appeal should be dismissed.

APPEAL from a judgment of J.P. Wright J. of the Superior Court of Justice, dated April 27, 2004, in a jury trial.

Harvey Klein, for appellant. David A. Patton, for appellant (counsel not appearing). Ben Marcus, for respondent Zanivan. Anne M. Mullins, for respondent Unterhoffer (counsel not appearing).

[1] Endorsement BY THE COURT: -- The sole issue in this appeal is whether the jury erred in concluding that the appellant, White, was negligent.

[2] On May 5, 2001, five-year-old Kyle White was playing with his mother's cigarette lighter in his bedroom closet at 7:30 a.m. while the mother slept in her bedroom. Kyle started a fire that damaged multiple units in the apartment building in which White lived. The apartment owner, Zanivan, and the tenant renting the adjoining apartment, Unterhoffer, sued White, alleging that she was negligent.

[3] The trial proceeded with a jury. In answer to a question, the jury found that White was not negligent for failing to secure the lighters. They found, however, that she was negligent in failing to supervise her children. The appellant submits that the jury erred.

[4] We disagree. In his charge, the trial judge instructed the jury that they could find the mother negligent if they were satisfied, "that she failed to supervise the children by failing to warn them of the danger of fire". A neighbour testified that the night before the fire he had seen White's children playing with matches and had told White about this. White denied that any such incident occurred on the night before the fire.

[5] In our opinion, it was open to the jury to accept the neighbour's evidence and to find that, in the circumstances, the mother was obliged to reinforce her instructions about the dangers of fire and that she failed to do so. As a result, it was open to the jury to come to the verdict it did and the verdict was not unreasonable. The appeal is therefore dismissed with respect to both Zanivan and Unterhoffer.

[6] Counsel for Zanivan requested costs in the amount of $4,050 plus GST. Counsel for White agreed that this amount was [page52] reasonable. We agree. Accordingly, costs of the appeal to the respondent Zanivan are fixed in the amount of $4,050 plus GST.

[7] With respect to Unterhoffer, if the parties cannot agree on costs they may make brief submissions in writing, not to exceed three pages double spaced, prior to April 5, 2005.

Order accordingly.