Cannito v. Madison Properties Inc., 2018 ONSC 6190

Maria Pia Cannito v. Madison Properties Inc.

COURT FILE NO.: CV-12-466910

DATE: 20181025

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARIA PIA CANNITO

Plaintiff

– and –

MADISON PROPERTIES INC.

Defendant

COUNSEL:

Ian A. Little and Dianna Morello, for the Plaintiff

Victor Galleguillos and Sloane Bernard, for the Defendant

HEARD: October 2-3, 2018

A.J. O’MARRA J.

1Maria Pia Cannito tripped and fell injuring herself in the York Plaza parking lot owned by defendant, Madison Property Inc. on June 27, 2012.

2In this action, the plaintiff alleges that while walking through the York Plaza parking lot located at 1593 Wilson Avenue, Toronto she tripped and fell over the corner of a speed bump, resulting in injuries for which she claims damages against Madison Properties Inc. the defendant.

3The parties have agreed as to damages and this action, which was conducted under simplified trial procedure, Rule 76 of the Rules of Civil Procedure, is to determine liability.

4The plaintiff alleges that the speed bump she claims to have tripped over was insufficiently marked and maintained by the defendant. The defendant denies the allegation and alleges that the fall was caused or contributed to by the plaintiff.

5This is a matter that involves questions of occupiers’ liability and negligence. The issues to consider are:

1. Has the plaintiff proven, on a balance of probabilities that the defendant breached its duty of care as required under the Occupiers’ Liability Act, RSO 1990, c. O.2 s. 3(1)?

S. 3(1) 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 on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

2. If a breach of the duty of care is established, has the plaintiff proven on a balance of probabilities that but for the negligence of the defendant the injuries would not have occurred?

6In written and oral submissions the defendant did not pursue the claim of contributory negligence on the part of the plaintiff.

The Circumstances

7Before recounting of the evidence of the witnesses, a brief description of the location is required for context.

8The businesses in the York Plaza in the area where the fall occurred face north toward a T-intersection, a laneway for two-way traffic that runs east-west and a main parking lot to the north of the laneway. A covered sidewalk runs east-west in front of the businesses. Parking is provided in front of the sidewalk, north of which there is the east-west laneway that permits traffic to proceed along the front of the plaza. There are two speed bumps on the laneway, one to the east and one to the west, the latter said to be the location of the occurrence. Several car lengths further west of the speed bump is the T-intersection for the north-south entrance to the plaza from Wilson Avenue and the east-west laneway. There is a marked pedestrian crossing on the east side of the T-intersection across the laneway at a stop sign that runs from the main parking lot to the plaza, which ends at the curb and sidewalk in front of the Scotia Bank. The main parking lot in this area of the plaza property is to the north of the laneway, which has the pedestrian crossing and the two speed bumps.

9The pedestrian crossing is posted with a sign, which says “PEDX”. On the ground it is marked with a yellow border and straight gridlines that runs north-south, curb to curb. The speed bumps to the east are marked in a yellow line border with slanted gridlines.

Ms. Cannito

10Ms. Cannito, 62, in her affidavit, sworn September 12, 2018 and in her trial testimony, states that on June 27, 2012 she had driven to the York Plaza to do her pension cheque banking, which she did monthly at the Scotia Bank. Further, she testified that she had attended the York Plaza at least once, possibly twice a month for the past 10 years. On the date the injury occurred she drove into the main parking lot in front of the area where the bank is located and parked “to the right, a bit before the Scotia Bank and before the intersecting laneway that runs from near the front of the Scotia Bank north to Wilson Avenue”.

11Ms. Cannito described the weather that day as being “good”. She walked from her car in the parking lot south bound to the Scotia Bank. She has no recollection as to the route she took to get to the bank, “I just crossed the road right in front of the bank.” She had no recollection of seeing any signs between her car and the bank, specifically as to where to walk or not to walk. She was in the bank for 15-20 minutes. As she left the bank she walked a little east on the sidewalk in front and then she began to cross the road looking both ways for any east-west traffic. Suddenly, she tripped and fell as she started to cross the laneway. She fell heavily onto the ground striking her chest and scraped her wrist and knee. She did not know what had caused her to trip and fall. Being scared, embarrassed and in pain, she got up and returned to the bank.

12At the bank, she was given water by an employee and asked by the bank manager if she required an ambulance, which she declined. Shortly afterward she returned to her car in the main parking lot and drove home.

13Ms. Cannito acknowledged that at the time she fell and later when she left the plaza that day she did not know what had caused her to trip and fall.

14Approximately two weeks later, after attending a lawyer, she returned to the plaza with her son-in-law, Joe Librandi to show him where she had fallen. There, he took photographs of the speed bump to the east of the bank and the pedestrian crossing. In the southeast corner of the speed bump there appeared to be a missing piece, which in retrospect Ms. Cannito claimed to have caused her to trip and fall. In her examination for discovery testimony, which she confirmed at trial, she stated “there was a piece missing and maybe that’s what I tripped and then I fell”.

15Ms. Cannito acknowledged that she had not said anything about tripping and falling on the speed bump when she had returned to the bank on June 27, 2012. She did not know at the time she tripped that it was on the speed bump. She did not remember which foot caused her to trip.

Forensic Experts

16Both parties called forensic consulting engineers as experts to testify as to whether the speed bump was compliant with applicable codes and standards.

17The plaintiff called Robert J. Shirer and the defendant called Russell Brownlee. Both experts testified that the applicable standard for speed bumps in private parking lots and laneways is set out in the ASTM (American Society for Testing Materials) F1637-13 which provides a Standard Practice for Safe Walking Surfaces. Speed bumps are dealt with at s. 8 and s. 5 which state in part:

Section 8.2 – All speed bumps which are in foreseeable pedestrian paths shall comply with 5.2 (walkway changes in level).

Section 5.2 walkway changes at level indicates:

• 5.2.3 Changes in levels between v1 and v2 in. (6 and 12 MM) shall be beveled with a slope no greater than 1:2 (rise:run).

• 5.2.4 Changes in levels greater than v2 in. (12 MM) shall be transitioned by means of a ramp or stairway that complies with applicable building codes, regulations, standards, or ordinances, or all of these.

S. 8.3 states: existing speed bumps that do not conform to 5.2 (which these speed bumps do not being greater than 12 mm in elevation) shall be clearly marked with safety colour coding to contrast with surroundings. Painted speed bumps shall be slip resistant. Pedestrian CAUTION signs are recommended.

18Mr. Shirer on examining the photographs taken by Joe Librandi in July 2012 and during his own examination of the location two years later on October 17, 2014 concluded:

1. The walkway and speed bump both with yellow borders and lines created a “visual trap” that “even normal average pedestrians could be fooled or tricked by the gritted appearance of speed bumps especially when focused on getting to their destination safely while negotiating through busy traffic”.

2. Speed bumps should be painted solid yellow with no gridding. “In my opinion, it is best that speed bumps when necessary be painted solid yellow”.

19In his view, “the speed bump installed at York Plaza, 1593 Wilson Avenue West, Toronto, ON does not conform to the industry standards and to the requirements of ASTM F1637-13. It has an irregular uneven shape with differing slopes and changes in level in the immediate area of the reported fall. It is also not painted solid caution yellow like other speed bump installations examined. In fact, it was painted with gritted yellow lines in a similar fashion as the walkway making it appear to be intended as a walkway and camouflaging it to pedestrians.” He came to the conclusion that it was the industry standard to paint speed bumps on private lots and laneways as a result of his own personal attendance at a variety of parking lots in the area where he observed speed bumps that were painted solid yellow.

20On the other hand, Mr. Russell Brownlee, speaking to his co-authored report prepared with Alexander Nolet, with Giffin Koerth Forensic Engineers, noted that the guideline to minimize risks of creating hazardous conditions to pedestrians provided in ASTM F1637 s. 5.2 only speaks of non-conforming speed bumps being “clearly marked with safety coloured coding to contrast with surroundings”. He observed that the speed bump in question was clearly marked in yellow paint and in contrast to the surrounding black asphalt surface. He notes in the report:

Of note, in the roadway design and traffic control referenced manuals/guides, there are no guidelines that specify the type of markings that should be used to delineate speed bumps OTM Book 11 indicates that pavement markings are used to “provide drivers with a preview of upcoming changes in the roadway” and that all pavement markings and delineations must be either white, yellow, or orange.

On the incident date, the edges of the speed bump were delineated with straight yellow pavement marking lines, and hatched yellow pavement markings were used to emphasize the presence of the raised pavement surface. . . . Yellow is a standard pavement marking colour used to delineate potential hazards in areas not be crossed (i.e. yellow center line), and provides high contrast levels, especially on black pavement surfaces…

Based on the information provided, the pavement markings present on the incident date was in good condition. The pavement marking clearly delineated the subject speed bump, provided advance warning of the location and extent of the raised pavement surface and would have been readily visible to prudent road users. As a result, the payment marking used to delineate the subject speed bump was compliant with the ASTM F1637 standards.

Photographs

21It was Ms. Cannito’s belief that she tripped and fell because of the “broken” or “missing” piece of the corner of the speed bump after viewing it two weeks later.

22Photographs of the speed bump in evidence were taken on three separate occasions. The first photographs in July 2012 approximately 2 weeks after the occurrence taken by Ms. Cannito’s son–in-law. The second set was taken by Mr. Shirer in October 2014. The third group of photographs were taken in May 2016 in preparation of the Giffen Koerth report.

23In the July 2012 photograph taken of the south end of the speed bump, an X was drawn on the southwest corner of the speed bump, where Ms. Cannito believes she tripped after looking at it two weeks after her fall. However, there is no discernible “broken” or “missing” corner to the southeast or southwest end of the speed bump in the July 2012 photographs. In the photographs taken in October 2014 by Mr. Shirer and in May 2016 shown in the Giffen Koerth report there is observable damage to the southeast corner of the speed bump, which does not appear in the earlier July 2012 photograph taken proximate in time to Ms. Cannito’s fall.

Law and Analysis

24The Occupiers’ Liability Act places a duty on occupiers to take such care as in all the circumstances of the case as is reasonable to see that persons entering on the premises are reasonably safe while on the premises. The standard of care required is a fact specific and depends on the circumstances of the case. It is to be applied in a flexible manner taking into consideration the nature of the premises and the activities that are carried out. (See Souliere v. Casino Niagara 2014 ONSC 1915 at para. 49.)

25There is no evidence that the installation of the speed bump in this instance was for a purpose other than to take reasonable steps to make the premises reasonably safe for its customers crossing a laneway to and from the parking lot and the stores in the plaza by reducing speed of passing vehicular traffic.

26Here, the plaintiff relies on Ling v. Calgary Cooperative Association Ltd. (1993), 1993 CanLII 7235 (AB KB), 14 Alta. LR (3d) 134 in support of her claim that the occupier failed in its duty of care to keep her safe due to the condition of the speed bump. In Ling, the plaintiff made a claim against the defendant store after she tripped and fell on a speed bump while crossing its parking lot. The trial court found the defendant 25 percent liable due to its “unmarked” speed bump and the plaintiff 75 percent liable. The speed bump, which had been painted earlier, at the time of the fall lacked any markings having worn off over the winter months. She also relies on Fingerhut v. Longwood Station Ltd., 2009 BCCA 558 which upheld a trial court decision that a uniformly painted speed bump (solid) with a gap in the middle with a different level to its two sides, presented an unexpected hazard.

27Although these cases involve speed bumps, the findings of liability are particular to the circumstances. In Ling, as noted by the Alberta Court of Appeal in dismissing the appeal and cross-appeal (1995 Alta. L.R. (3d) 68), the speed bump was “unmarked” at the time of the fall and in an area where concentrated pedestrian traffic was expected. In Fingerhut, liability was found where the road between the two lengths which comprise the speed bump was painted the same colour as the raised area of speed bumps, which created a gap and change in level between the lanes into which the plaintiff stepped and fell. In that case the application of solid colour obscuring the gap created the hazard.

28In this instance, I accept that the marking of the speed bump was compliant with the standard practice for walking surfaces (ASTM F1637-13) and provided advance warning of the raised pavement surface making it readily visible to prudent road users. The yellow border and grid markings provided a clear contrast with the surrounding black asphalt surface. The standard does not require solid yellow markings as inferred by Mr. Shirer based on his random examination of speed bumps in other locations.

29Although Mr. Shirer opined that there was a “visible trap” because of the similar markings for the walkway to the bank across the laneway and the speed bump, it was not a factor in the circumstances of this case. Ms. Cannito testified that she was not aware of either the pedestrian cross walk or the speed bump at any time when she crossed from and back to the parked location of her vehicle. Whether the speed bump was marked in a solid yellow fashion or as outlined with a yellow border and grid pattern had no bearing on Ms. Cannito`s trip and fall.

30Based on the photographs taken July 2012, even a cursory downward glance by anyone crossing in the area of the speed bump would have readily revealed the existence of the speed bump as a result of the gridded yellow markings which contrasted clearly with the black asphalt.

31Even if the speed bump not being painted solid yellow and/or it had an irregular shape to the south end of the speed bump that could be considered breaches of the standard of care within the Occupiers’ Liability Act, in this instance, there is no objective proof of causation. The plaintiff must be able to establish that an act on the part of the occupier caused her injury. An inference of causation must be based on objective facts rather than conjecture or speculation.

32When Ms. Cannito fell on June 27, 2012 she did not know what caused her to fall. Indeed, she acknowledged that it was only on her return two weeks later with her son-in-law and she saw what she described as the “missing piece” on the southeast corner of the speed bump that she concluded, “maybe that’s what I tripped and then I fell”.

33In Lansdowne v. United Church of Canada (2000) BCSC 1604 the plaintiff fell on a flight of stairs in the defendant’s church. As in this case, she did not know what had caused her to fall. About a week after she fell, a friend went to the church and noticed some fraying carpet on the bottom step. The plaintiff in her action alleged that the fraying carpet was the cause of her fall. In dismissing the claim the court held the following:

22The Court cannot presume negligence on the part of an occupier of premises: Bauman v. Stein, supra, at p. 127. Nor can it presume that some act, or failure to act, on the part of the occupier caused the plaintiff to fall: Vandergaast v. Atterton [1988] B.C.J. No. 2695 (C.A.).

23In my judgment, on the evidence before the Court here the Court would have to resort to speculation in order to find that Ms. Lansdowne's fall was caused by the loose threads on the bottom step of the stairs or some other defect in the carpeting on those stairs. This it must not do. According to Ms. Duggan, when she saw the threads one week after the accident they were coming out over the bottom step. Ms. Lansdowne, however, does not know on which step she tripped or where on the stairs she started falling. At best, both she and Ms. Lansdowne are able only to advance a theory that in some way Ms. Lansdowne's sandals got caught up in the loose threads and that as a result she tripped and fell.

34In Nandlal v. Toronto Transit Commission, 2014 ONSC 4760, (aff’d on appeal, 2015 ONCA 166), the plaintiff claimed she injured herself when she slipped on debris at the top of stairs on the defendant’s property. Although she had not seen debris when she fell, the basis for her belief she had slipped on debris was because she had seen debris in the past. On a summary judgment motion her claim was dismissed as there was no objective evidence of the slippery steps hazard, only her subjective rationalization.

35In Hamilton v. Ontario Corporation No. 2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467 the plaintiff claimed to have slipped and fallen on the vinyl floor in the corridor outside her apartment, but gave no evidence of an alleged “hazard” at the time. Sanfilippo J. noted at para. 44-46 of the decision that an inference of causation must be based on objective facts, not speculative rationalization. In that case there were insufficient objective facts to support the plaintiff’s claim that her slip and fall was on a slippery vinyl floor outside of her apartment, notwithstanding past issues with maintenance and “detected spills” that occurred at times after her fall. Without objective evidence from which a reasonable inference of causation could be drawn, the plaintiff failed to prove on a balance of probabilities that an unsafe condition caused her slip and fall and injuries.

36Here, at best Ms. Cannito can only advance a theory, based on her subjective belief that she tripped either on the speed bump or “maybe” it was because of a “broken” or “missing piece”, for which no objective evidence exists proximate to the time of the trip and fall. There is no objective evidence presented that connects the plaintiff’s fall with any deficiency of the speed bump markings or its condition at the time of her fall. Speculative theories are insufficient to establish liability.

Result

37In the result the plaintiff has not proven on the basis of objective evidence that the defendant breached its duty of care pursuant to the Occupiers’ Liability Act or caused her injuries as a result of any breach.

38The plaintiff’s action against the defendant is dismissed with costs.

39Costs are awarded to the defendant. If the parties are unable to agree as between themselves as to costs, counsel may make written costs submissions of no more than four pages in length, including a costs outline within 15 days of the release of this decision. The responding submission is to be made within seven days thereafter.