ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 05-CV-32721
DATE: 2013-08-22

B E T W E E N:

Michelle Ellen Botosh

William J. Sammon and Amanda Estabrooks, for the Plaintiff

Plaintiff

- and -

City of Ottawa, Greenbelt Construction Company Limited, Dibblee Construction Limited and Lafarge Paving & Construction Limited

Mitchell Kitigawa for the Defendants the City of Ottawa and Greenbelt Construction Company Limited and

Kelly P. Hart and Kristopher Dixon for

the Defendants, Dibblee Construction Limited and Lafarge Paving & Construction Limited

Defendants

HEARD: February 19, 20, 21, 22, 25, 26, 27, 28, March 1, 4, 5 and 6, 2013, with written submissions thereafter. Held in Ottawa, Ontario

Madam Justice B. R. Warkentin

Reasons for Judgment

TABLE OF CONTENTS

OVERVIEW
ISSUES
LIABILITY
Alternate Route Theories
Standard of Care/Negligence
Contributory Negligence
ANALYSIS OF LIABILITY
Pedestrian Safety and Ramping
Signage
Findings Re: Liability
Findings Re: Contributory Negligence
APPORTIONMENT OF LIABILITY BETWEEN DEFENDANTS
Positions of the Parties
Occupier’s Liability
DAMAGES
The Thin Skulled Plaintiff
Medical and Educational History Pre and Post Fall
The Fall and Post Fall
Expert Medical Evidence
Evidence of Dr. Ken McKee
Evidence of Dr. Alexander Reesor
Evidence of Dr. Rajka Soric
ANALYSIS RE: DAMAGES
General Damages
Past and Future Loss of Income
Future Care Costs
Out-of-Pocket Expenses
SUMMARY AND COSTS

OVERVIEW

[1] Michelle Botosh commenced an action against The City of Ottawa (the “City”), Greenbelt Construction Company Limited (“Greenbelt”), Dibblee Construction Limited and Lafarge Paving & Construction Limited (collectively referred to as “Dibblee”) for damages flowing from a trip and fall that she alleges occurred on November 8, 2003 in Ottawa, Ontario on St. Patrick Street at the intersection of Dalhousie Street.

[2] Ms. Botosh claims that she fell when her left foot clipped the leading edge of a depressed curb (ramp) at the intersection of Dalhousie Street and St. Patrick Street after she had already placed her right foot up onto the sidewalk. There were no witnesses to her fall.

[3] Ms. Botosh has mild cerebral palsy which affects the left side of her body. Her left hand has no fine motor skills and lacks dexterity. At times she has spastic movement in her left foot, which lacks grip and upward flexion. Her left ankle is weak. On November 8, 2003, she was 26 years old. Ms. Botosh claims to have injured her right shoulder in the fall, an injury that has become chronic.

[4] Commencing May 2003, St. Patrick Street was reconstructed by the City. Greenbelt was the general contractor and Dibblee was the paving subcontractor. The reconstruction project included a complete reconstruction of the underground sewer services, roadway and sidewalks.

[5] By November 8, 2003, most of the reconstruction at the intersection of St. Patrick and Dalhousie Streets had been completed with new sidewalks having been installed and two of three layers of asphalt in place on St. Patrick Street. The third and final layer of asphalt was to be placed in 2004. The ramping (depressed sidewalk and curb for pedestrian and accessibility purposes) at that corner had not been completed and as such there was a height differential or vertical gap from the top of the asphalt roadway to the top of the concrete gutter of 40mm or approximately 1.5 inches. There was then a concrete gutter with a width of about 6 inches and then a further height differential between the concrete gutter depressed curb/sidewalk of another 15mm or 9/16 of an inch.

[6] The reconstruction was continuing on other parts of St. Patrick Street and was in various stages of completion. By the end of November 2003, the final layer of asphalt had been laid and the ramping for the depressed sidewalks had been completed. Upon completion of the ramping, the vertical gap from the top of the gutter to the depressed curb/sidewalk was 12.5 mm or 0.5 of an inch. The top of the asphalt roadway was flush with the gutter. These measurements corresponded with the engineering standards and requirements for this intersection.

[7] On November 8, 2003 Ms. Botosh had been grocery shopping and was walking home from the grocery store, carrying a modest amount of groceries. She claimed that she was walking along her usual route home and was not aware that the construction on that intersection had not been completed. Ms. Botosh’s apartment at that time was approximately two blocks from this intersection, on Dalhousie Street. She claimed that the warning signs regarding ongoing construction had been removed.

[8] The Defendants admit that Ms. Botosh fell by tripping on a curb, but they deny that in the specific circumstances of this case they owed a duty of care to Ms. Botosh at the time and location of her fall. They allege that Ms. Botosh was wholly negligent for her fall.

[9] The Defendants also took the position that Ms. Botosh did not fall at the site she claimed. They allege she fell somewhere else entirely while taking a different route home. Alternatively, they alleged that she was jaywalking across St. Patrick Street in an unsafe manner and fell when she failed to negotiate a full curb (approximately 7.5 inches in height from the top of the roadway after the second pour of asphalt to the top of the curb).

[10] The Defendants argued that if Ms. Botosh did, in fact, cross at the crosswalk where she claims she fell, she did not face a hazard, but rather fell as a simple result of her own carelessness by failing to complete the step with her left foot, which she had already successfully completed with her right.

(Full judgment text continues exactly as in the source, including all numbered paragraphs [11] through [202], the detailed liability analysis, damages assessment, expert evidence discussion, apportionment of liability, and concluding orders.)

Madam Justice B. R. Warkentin

Released: August 22, 2013