Court File and Parties

COURT FILE NO.: CV-09-379297 DATE: 20160421 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SHARON MARY IRVINE by her Litigation Guardian, MARY CATHERINE IRVINE Plaintiff – and – KIMBERLY SEIPT and RENE SEIPT Defendants

Counsel: Norman Epstein, for the Plaintiff Jame Pedro, for the Defendants

HEARD: March 29 and 30, 2016

G. DOW, J.

REASONS FOR JUDGMENT

[1] The plaintiff seeks to determine the liability of the defendants, if any, for injuries and damages arising from a fall which occurred on the defendant’s premises on June 17, 2007. The parties agreed on the quantum at $31,500 for all general and special damages, including the subrogated claim of OHIP and pre-judgment interest.

Background

[2] The evidence and exhibits can be summarized as follows.

[3] The plaintiff, born February 4, 1950, is the sister of Sheila Griffen who married Paul Griffen. Paul Griffen and his sister, Susan Van Allen (married to Rick) wanted to celebrate their mother’s (Muriel Griffen) 90th birthday with a get together of family and friends on June 17, 2007.

[4] It was decided the event would be held at Susan and Rick Van Allen’s daughter’s home in Caledon. Susan and Rick Van Allen’s daughter is the defendant, Kimberly Seipt, a financial advisor who is married to the co-defendant, Rene Seipt, a master electrician and owner of an electrical engineering firm.

[5] In July, 2004, the Seipts purchased a one-acre (110 feet by 396 feet) residential lot in Caledon and began building what appears to be a carriage trade home after obtaining a building permit in September, 2004. By December, 2005, they had completed construction to the point the Town of Caledon had approved occupancy noting “Exterior work to be completed”.

[6] For the purpose of this action, as of June 17, 2007, this meant a slab of concrete, about five feet by 21 feet, formed a rear exterior porch and had a portion of the rear exterior wall on three sides. The north edge of the slab of concrete was about 13.5 inches above the ground which abutted the southern edge of the rear yard. On the west side of the concrete porch was a door to the master bedroom. On the south side of the porch was a door to a main floor bathroom and double doors to the living room. On the east side was a door to the kitchen.

[7] Also along the rear wall of the home, about 20 feet further east or near the northeast corner of the home was a double set of doors (at the same height as the doors surrounding the porch which were about four inches above the slab of concrete). As of June 17, 2007, these doors had a rectangle of concrete forming a step about seven or eight inches above the ground or about one-half of the 16-17 inches from the bottom of the door to the ground outside. The concrete step was placed there pending delivery of a lintel.

[8] The rear yard was sodded in October, 2006. In 2009, or after this incident occurred, interlock was installed over the concrete slab as part of extending the porch, now a patio, further into the yard and included two steps down to a path leading to a pergola.

[9] Kim and Rene Seipt obtained two dogs in late 1999 and early 2000. The first, Auzzie, was a black Labrador Retriever and the second, Tazzie, was a cross between a Staffordshire Bull Terrier and a Pit Bull. The latter dog is within the definition of a restricted pit bull under Ontario legislation that came into force in 2005 and required the owner to equip such a dog with a muzzle and leash unless within enclosed property occupied by the owner. It was admitted the defendants’ rear yard was not enclosed. They had a leash but no muzzle for Tazzie. The leash was not used (or required according to the defendants) when the dogs were in the rear yard. It should be noted that by all accounts, the dogs were friendly and well-trained. Photos were tendered of the central part the dogs played in the lives of the defendants including Tazzie acting as a ring bearer at the defendants’ wedding and, subsequent to the incident in question, playing with the defendant’s eldest child, Amelia (who was five months old at the time of the incident) the following summer or when she is about 18 months old.

[10] The plaintiff was one of six siblings and the eldest. The other siblings, from eldest to youngest are Chris, Sheila (married to Paul Griffen), Mary (the Litigation Guardian), John and Jerome. The siblings range in age from 53 to 66.

[11] The plaintiff is a university graduate and became a teacher before operating a daycare business out of her home which stopped after she moved back into her parents’ home to look after them. They passed away in 2003 (father) and March 2007 (mother).

[12] The plaintiff had her own health problems which included diabetes, hypertension, depression and bipolar disorder or schizophrenia which required psychiatric treatment and medication. Medical records filed have her receiving treatment from a psychiatrist as of 1996. Defence counsel noted the records of the family doctor includes entries February 14, 2005 and March 29, 2005 detailing a right ankle injury from a fall. However, there does not appear to be reference to any ongoing effect of this injury in the 12 entries subsequent up to January 10, 2007 or before the incident giving rise to this action.

[13] As a result of the fall on June 17, 2007, the plaintiff suffers a “dorsally displaced and angulated distal radius fracture” (Dr. Stephen Sunnybrook Fracture Clinic June 19, 2007) of the left wrist treated by closed reduction with follow up visits to the Sunnybrook Hospital Fracture Clinic.

[14] The plaintiff’s health worsens in February, 2011 when she is described as having fallen at home and “an unclear history of trauma or spontaneous intracerebral event” (operative note Dr. Phan, Neurosurgeon June 15, 2011). The brain hemorrhage requires surgery to relieve swelling and she remains hospitalized with a note by Dr. Phan January 4, 2012 describing a partial recovery but “severe neurological deficits including speech deficits, right-sided weakness, and cognitive deficits”. She is unable to manage her personal affairs. She did not give evidence at this trial and her affairs are managed by her sister, the Litigation Guardian, Mary Irvine.

[15] The evidence of Mary Irvine, Sheila Griffen and Chris Irvine was that the plaintiff has a fear of dogs. The plaintiff was invited to the party at the suggestion of Sheila Griffen who described her sister Sharon as still depressed following the March, 2007 passing of their mother, and that attending the event would help her. Sheila Griffen admits at some time before the event that Sharon raised this long-time fear of dogs with her. Sheila Griffen, who testified for the plaintiff under summons, admitted she called Susan Van Allen and explained the situation to her and reached an agreement the dogs would not be “out and about”. Sheila Griffen also testified advising the plaintiff of this discussion as part of obtaining her agreement to attend the party with Mary Irvine and Chris Irvine.

[16] To the contrary, Susan Van Allen has no recollection of the conversation and the defendant, Kimberly Seipt, not only denied any awareness of the subject but also any awareness that Sharon, Mary and Chris had been invited.

[17] To further complicate matters, the plaintiff, Sharon Irvine had been to the Griffens’ home on numerous occasions without any apparent special steps being taken with regard to the Griffens’ German Shepherd.

[18] The plaintiff arrived with siblings, Mary and Chris Irvine at a time that varies between witnesses but appears to be early on in the afternoon and in the 11:45 – 1:45 p.m. timeframe. They had been driven there as a courtesy by (Paul and Shelia Griffen’s son), nephew James Griffen. They were met at the front door by Rick Van Allen and directed around the side of the house to the rear yard. In the rear yard and near the back or northernmost portion of the property, Paul and Shelia Griffen’s younger son, Daniel Griffen, was throwing a ball that the two, not leashed dogs were retrieving. This stopped after a few minutes and the dogs began to come closer to the rear of the home.

[19] Sharon Irvine, estimated to be about five foot two inches to four foot four inches, 140-150 lbs., wearing flat shoes and having not consumed any alcoholic beverages reacted by walking towards the porch. In her attempt to step up onto it, she fell back extending her hands, particularly the left as she fell onto the ground.

[20] James and Daniel Griffen apparently helped her up and she is seated on a chair. The fall was observed by the defendant, Kimberly Seipt who testified she was walking out of the kitchen onto the porch at the time it occurred. She estimated the dogs were about 20 to 30 feet away. Kimberly Seipt was the one who got ice to place on the plaintiff's left wrist and suggested it be examined at a hospital. James Griffen volunteered to drive the plaintiff to the hospital. It was decided to take her to Sunnybrook given it was closest to the plaintiff’s home and where she has been previously treated.

Issue

[21] Are the defendants liable to the plaintiff in the circumstances and what, if any, contributory negligence is there on the plaintiff?

Analysis

[22] I begin with the Occupiers’ Liability Act, R.S.O. 1990, c.O. 8 and section 3(1) which provides that an occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering upon the premises are reasonably safe while there. Therefore, the defendants owed a duty of care to the plaintiff to see that she was reasonably safe during her attendance on their property. There was evidence given by Alison Orr, a civil engineer who was qualified to give expert evidence in Building Code matters that the standard rise of steps in a residential home is about seven inches (when converted from metric) or about one half of the height of the step from the rear yard onto the porch. This, in my view, is sufficient to create a risk of harm not only to the plaintiff but to others on the property and particularly the elderly. I am reinforced in this conclusion by the fact the defendant had made an effort after occupying the premises to place a temporary step at the rear doors located at the northeast corner of the home while awaiting delivery of a custom made lintel. Further, while not determinative, when the interlock was installed over the porch in 2009, two steps down to the yard were installed.

[23] The defendants submit the property was in compliance with the Building Code given inspection and permission by the Town of Caledon in December, 2005 to occupy the premises. However, as Ms. Orr testified, this type of inspection is focused on installation and operation of smoke alarms, the existence of handrails and running water. It does not prohibit me from finding negligence on the part of the defendants.

[24] In addition, it is clear the defendants were in breach of the Dog Owners Liability Act, R.S.O. 1990, c.D.16 and the 2005 amendments and regulations with regard to pit bulls. Specifically, Tazzie was required to “be equipped with a muzzle and secured by a leash” unless within “enclosed property occupied by the owner”. Despite his pleasant demeanour and excellent training, the law required Tazzie be restrained in the circumstances. I am prepared to accept the plaintiff had a fear of dogs. I also accept that it was expressed to Shelia Griffen who did speak to Susan Van Allen about this concern and was assured steps would be taken to alleviate this concern. In my view, it is not necessary to find whether or not the plaintiff’s fear of dogs was what caused her to attempt to step onto the porch. That is, had the plaintiff decided, for whatever reason, she needed to enter the house by the variety of doors on the porch, the height of the porch posed a risk and danger not only to her but others, particularly the elderly that had been invited onto the property that day.

[25] As a result, the defendants were negligent in failing to have a step in place or some other means to ensure users of the porch and backyard could safely step up or down at that location.

[26] Having found the defendants failed to take reasonable care of the premises, I must also determine whether the plaintiff was negligent in failing to take reasonable care for her own safety.

[27] In this regard, the step up to the porch was plain and obvious. It was significantly higher than the usual rise and estimated by witnesses, such as Paul Griffen, to be greater than the actual 13 inches it was subsequently measured to be.

[28] Further, it was daylight and there appeared to be no issues as to visibility. The plaintiff also had the option of requesting help from others such as her siblings nearby or Daniel and James Griffen if she was unsure of her ability to safely step onto the porch. Finally, there were also the doors at the northeast corner of the rear of the home where a step was available. To that end, I find the plaintiff was contributorally negligent in failing to take reasonable care for her own safety.

[29] I assessed the liability to be 65 percent on the defendant and 35 percent on the plaintiff.

Costs

[30] I neglected to obtain the claims of the parties for costs. Should the parties be unable to agree on this issue within the next 14 days, the plaintiff may provide me with not more than three pages, double-spaced in 12 point font, detailing its position including quantum. The defendant shall have a further 14 days to provide their response, similarly limited in length, spacing and in font to that permitted to the plaintiff.

Mr. Justice G. Dow Released: April 21, 2016