COURT FILE NO.: C-525-06
DATE: 2019-01-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRONWEN ELIZABETH RUTHERFORD LEVER, WILLIAM JONATHAN RUTHERFORD LEVER, MARY BETH RUTHERFORD and TIMOTHY A. LEVER
- and –
ALLEN KATERBERG
Counsel:
Cindy Dickinson, Counsel for the Plaintiffs Bronwen and William Lever
Gary Flaxbard, Counsel for the Plaintiffs/ Defendants by Counterclaim, Mary Beth Rutherford and Timothy Lever
James Bromiley, Counsel for the Defendant
HEARD: October 15, 2018
The Honourable Justice C.D. Braid
REASONS ON MOTIONS
I. OVERVIEW
[1] Five-year-old Bronwen Lever was playing with other children in a neighbouring yard. She sustained injuries when she was run over by a lawnmower operated by her neighbour, Allen Katerberg, who knew she was playing in his yard at the time. Bronwen, her brother (William Lever), and her parents sued Mr. Katerberg, who then counterclaimed against the parents.
[2] The plaintiffs move for summary judgment on the issue of liability. They ask for judgment declaring the defendant 100 percent liable and dismissing the counterclaim against the parents. If that request is granted, the trial will proceed as an assessment of damages.
[3] In these reasons, I shall address the following issues:
A. Is this an appropriate case for summary judgment?
B. Occupiers Liability Act claim in the main action
C. Liability of the parents in the counterclaim
[4] For the reasons set out below, I make an order dismissing the claim against Bronwen’s father, Timothy Lever. I direct that the matter proceed to trial to determine the liability of the defendant, Mr. Katerberg, and Bronwen’s mother, Mary Beth Rutherford. The trial court shall also determine damages.
II. FACTS
[5] Many facts are not in dispute.
[6] In these reasons, I shall refer to Mary Beth Rutherford as “Bronwen’s mother” and I shall refer to Timothy Lever as “Bronwen’s father”. I shall refer to the children by their first names.
[7] In May 2004, three families lived close together, and their children often played together. Two of those families were the Levers (Bronwen’s family) and the Katerbergs. Amongst those three families, there was a group of older children who were five years and older, and a younger group of children who were four years or younger. The older children had a level of independence and required a lower level of supervision. The children would often go to the neighbouring yards of the other families to play.
[8] The Lever property had an unfenced backyard that abutted the Katerberg’s side yard. The Katerberg yard was a big open area where the children could run around. The side yard and part of the backyard of the Katerberg property could be seen from the Lever property.
[9] Bronwen was five years old and did not require constant supervision. Her friend Thomas Katerberg was also five years old. Bronwen’s older brother, William, was nine years old.
[10] On May 14, 2004, Bronwen, William, Thomas, and other children were playing tag and running around in the Katerberg yard after school. Mr. Katerberg arrived home from work at approximately 5:30 pm and immediately began mowing his front yard with his riding lawnmower.
[11] Mr. Katerberg eventually began mowing the side yard and the backyard. At some point, Thomas climbed on to the back of the mower. He had his arms around his father’s neck and above his shoulders, crossed at the front of his father’s body. Thomas’s body was draped onto his father’s back. Thomas was standing on a steel frame on the back of the mower while Mr. Katerberg cut the grass. The other children continued to play in the yard.
[12] At approximately 5:55 pm, while Thomas was still on the back of the mower, Mr. Katerberg reversed to get up a small incline. As he did this, Bronwen was behind him. While reversing to the right, he looked over his right shoulder. He did not see Bronwen and, as he reversed, she slipped and her left leg slid under the blade of the riding lawnmower. He went forward, looked to his left because he was turning left, and then noticed Bronwen on the ground. He immediately shut off the lawnmower, picked up Bronwen and ran to the house.
[13] Bronwen sustained significant and disfiguring injuries to her left leg, ankle, and foot. This resulted in a loss of bone, muscle, soft tissue, and skin. As a result of these injuries, she required several surgeries. There is a potential for future surgery and rehabilitation.
[14] Although contained in the pleadings, the defendant Mr. Katerberg has withdrawn any claim of contributory negligence against Bronwen. The plaintiffs have abandoned claims for aggravated and punitive damages.
III. ANALYSIS
A. Is This an Appropriate Case for Summary Judgment?
[15] The court shall only grant summary judgment if it is satisfied that there is no genuine issue requiring a trial. Pursuant to rules 20.04(2)(a) and (2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall consider the evidence submitted by the parties and may exercise any of the following powers for the purpose of determining whether there is a genuine issue requiring a trial, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
[16] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada clarified the test to apply on a summary judgment motion. There will be no genuine issue requiring a trial if the evidence permits the court to make a fair and just determination on the merits. This will be the case when a motion for summary judgment (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious, and less expensive means to achieve a just result.
[17] What is fair and just depends on the nature of the issues and the nature and strength of the evidence. There is an obligation on each party to “put its best foot forward.” The responding party must present its best case or risk losing: Canada Mortgage and Housing Corp. v. Greenspoon, 2015 ONSC 6882, 64 R.P.R. (5th) 99, at para. 28.
[18] The plaintiffs submit that, if the court is unable to fully determine the issue of whether the parents are liable, the court can grant summary judgment on the occupier’s liability claim in the main action against Mr. Katerberg and leave the counterclaim for trial. I disagree.
[19] It would be inappropriate to determine partial summary judgment only on the main action and leave the counterclaim for trial. Mr. Katerberg concedes that he will attract some responsibility for the incident. However, the determination of apportionment of liability, if any, requires consideration of the actions of parties who may be liable and should be determined by the same trier of fact.
[20] The defence submits that summary judgment should not be granted because a single jury should try the issues of liability and damages. However, delivery of a jury notice does not automatically preclude summary judgment. The right to a jury trial is a fundamental but not an absolute right. Where there is no genuine issue requiring a trial, there is no need for a jury: see B.(R.) v. S.(E), 2017 ONSC 7866.
[21] The test for granting a summary judgment focuses on whether there is an issue requiring a trial. That a jury could decide an issue does not mean that it needs to be tried by a jury: see Mehlenbacher v. Cooper, 2017 ONSC 3434, 70 C.C.L.I (5th) 147; and Broomfield v. Doidge, 2012 ONSC 739.
[22] The role of the summary judgment motion judge is to determine whether there is a case to put to the jury. If there is not, then a litigant should not be put to the trouble and expense of a jury trial. The gatekeeper function of the motion judge performs a valuable role in containing litigation to the necessary parties, reducing the cost and length of trials: see Cooke v. Toivonen, 2011 ONSC 1315, 105 O.R. (3d) 232.
B. Occupiers Liability Act Claim in the Main Action
[23] Mr. Katerberg was the owner and occupier of the property where the incident occurred. Mr. Katerberg had an obligation to take such care as was reasonably necessary in all circumstances to see that Bronwen was safe while on his property. This duty applied whether the danger was caused by the condition of the property or activity carried out on the property: see s. 3 of the Occupiers Liability Act, R.S.O. 1990, c. O.2.
[24] The applicable standard of care is one of reasonableness in the circumstances. The trier of fact must assess whether Mr. Katerberg took reasonable care in the circumstances to render his property reasonably safe for Bronwen. The standard of care set out in section 3(1) of the Act requires that he take positive steps to make his property reasonably safe. The question is whether Mr. Katerberg’s steps were sufficient to discharge the burden placed on him by the Act: see Kerr v. Loblaws Inc., 2007 ONCA 371, 244 O.A.C. 56.
[25] Mr. Katerberg admits that he is at least partially liable for the injuries Bronwen sustained. This is a reasonable concession to make. The following evidence may assist a trier of fact in determining the extent of his liability:
i. He was driving the lawnmower in a yard where children were playing.
ii. He gave the children two warnings to stay away from the mower but did not direct them to leave the yard or to go to a specific area of the yard. He did not ask his wife to supervise the children. He acknowledges that Bronwen and William would have gone home if directed to do so, as they were obedient children.
iii. He knew (or should have known) that the children may not have paid attention to him because they were engrossed in their game.
iv. He permitted his five-year-old son, Thomas, to hang off his back and shoulders while driving the lawnmower. Thomas had been playing with other children before he climbed on the back of the riding lawnmower. Through his conduct, Mr. Katerberg potentially encouraged the children to play near the lawnmower. He did not consider that having Thomas on the back of the mower would entice the other children to get closer.
v. With Thomas draped on his shoulders, Mr. Katerberg’s view was obscured when backing up. He did not ensure that he had a clear view behind him before backing up the mower.
vi. He was fully aware of the dangers of power machines and tools and knew that lawnmowers could cause injury.
vii. He did not heed the warning labels on the mower, which stated that it is dangerous to mow when children are around; to never carry children on the mower; and to look down and behind before and while backing up.
viii. Even though he did not read the manual or warning signs, he knew it was his responsibility, as the adult driver, for the children around him. He also knew it was potentially dangerous to allow a child to ride on the mower and to allow children in the vicinity when operating the mower.
ix. He knew that the mower blades would continue to operate when the mower was in reverse.
x. He paid attention to the children when he saw them but did not know where they were at all times. The children were running and chasing each other and could have run closer to the mower without him knowing.
xi. He knew there was a general expectation that the parent of the property where the children played would not put the neighbouring children in any danger.
[26] Although Mr. Katerberg admits that he is at least partially liable, he states that Bronwen’s parents should share in the liability. I will, therefore, move on to consider the factors that will permit the court to assess the liability of Bronwen’s parents.
C. Liability of the Parents in the Counterclaim
[27] The counterclaim against Bronwen’s parents alleges that they were negligent in their duty to Bronwen, in the following ways:
i. Failing to protect her from harm;
ii. Failing to properly supervise and provide guidance to her;
iii. Failing to take reasonable steps to prevent injury to her while on the Katerberg property;
iv. Failing to alert her to the dangers of machinery; and
v. Failing to provide instruction regarding safe behaviour around machinery.
[28] Parents are under a legal duty to exercise reasonable care to protect their child from reasonably foreseeable dangers. What is reasonable in the circumstances should be considered in light of the accepted standard of care by parents generally in the immediate community: see Arnold v. Teno, 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287 (S.C.C.).
[29] The parties all agree that it is common sense not to allow children in the presence of a running lawnmower.
[30] This is not a case where a parent left Bronwen in the Katerbergs’ care with a clear and direct understanding that the Katerbergs would take care of her. Although Bronwen’s parents believed that the Katerbergs would take full responsibility for Bronwen when she was playing in their yard, the families never formally or informally discussed this belief.
[31] The following is common ground in the evidence with respect to the accepted standard of care in the immediate community:
i. Parents in all three families agree that, if there was any unsafe play, the parents who owned the property would handle the situation appropriately.
ii. None of the parents followed their children to a neighbour’s yard to watch them play.
iii. The parents checked on their children in the neighbour’s yards if they had not seen them for half an hour.
iv. The older children were not directly supervised at all times.
v. The parents knew where their children were playing at any given time.
[32] The evidence regarding the accepted standard of care in the immediate community conflicts on the following points:
i. Whether supervision of the children in the neighbourhood was aligned with property ownership; and
ii. What the duty of care of parents in this community was as it relates to supervising neighbouring children playing in their yard.
[33] Bronwen’s parents had a general understanding that, when children were in a yard, the owner of that yard would be responsible for supervision of their children. They say that the three families had fallen into the custom, habit, and routine that the parents on whose property the children were playing had the responsibility of looking after the children. The plaintiffs state that this community standard meant that Allen Katerberg was singularly responsible for Bronwen when she was in his yard.
[34] The Katerberg parents say that it was their duty as parents to be responsible for their own children, no matter what yard they were in. This included the obligation to know where their children were, what activities they were involved in, and whether they were playing safely. They do not agree that there was a community standard as the plaintiffs asserted, nor do they agree that supervision responsibilities were aligned with property ownership.
[35] A parent in the third family (whose children were younger than the Levers) provided evidence that she had the responsibility as a parent to know where her children were and that they were playing safely. She believes that it was the custom of parents to regularly supervise their own children, even when they were playing in a neighbour’s yard. She also stated that other people’s children playing in her yard were not her responsibility.
i. Claim Against Bronwen’s Father
[36] Bronwen’s father was at work on the day of the incident. He arrived home from work and left shortly thereafter to run an errand. When he left for the store, he saw William, Bronwen, and other children in the Katerberg yard. He did not see either of the Katerberg parents. He was not at home when the incident occurred.
[37] Although Bronwen’s father knew that his children were playing in the Katerberg’s yard, he did not know that a riding lawnmower was in use. If he had seen the lawnmower and his children there, he states that he would have told them to stay well away from the lawnmower and would probably have told them to go home. He knew that Bronwen might not have understood what was a safe distance to stay away from a lawnmower.
[38] Bronwen’s father did not recall Mr. Katerberg having a riding lawnmower before the incident. He had never witnessed Mr. Katerberg operating the riding lawnmower when children were in the yard.
[39] Bronwen’s father did not use a riding lawnmower, but he had a power mower that he pushed manually. He would not use his push mower when the children were present. He spoke to Bronwen and the other children about the dangers of the lawnmower. It would have been difficult for him to instruct his children regarding the dangers of a riding lawnmower when he did not own one. In light of the information available to him, these were sufficient instructions.
[40] Parents cannot ensure that a child is safe from every peril. All parents can do is inform and instruct, shelter and sustain: see Ibrahim v. McLenahan, [1996] B.C.J. No. 3128.
[41] There is no evidence that the accepted standard of care by parents in the immediate community required a parent be present at every moment to supervise their children. Bronwen’s father could not possibly have a duty to directly supervise Bronwen when he was at work and when out running errands. The conflicts in the evidence regarding the community standard do not impact the father’s liability since he was not present and did not know that Mr. Katerberg was mowing the lawn while the children played in the yard.
[42] I am satisfied that Bronwen’s father exercised reasonable care to protect Bronwen. It was not reasonably foreseeable to him that Bronwen would encounter the riding lawnmower at the Katerbergs. There were no warning signs that Bronwen may be in imminent danger. He provided suitable safety instruction to her regarding the dangers of machinery and safe behaviour around machinery. He was not required to anything more in the circumstances, and no liability could fall to him.
[43] For these reasons, the claim against Bronwen’s father is dismissed. Although this may be viewed as a partial summary judgment, there is no risk of duplicative or inconsistent findings. There is no reason to believe that granting summary judgment against Bronwen’s father would have a prejudicial impact on the trial of the remaining issues. There are no facts in dispute that need to be resolved to determine summary judgment with respect to this claim.
[44] This is a case where the role of Bronwen’s father can be severed from the rest. This determination will result in one party being released from the proceedings. The evidence that has been filed permits the court to make a fair and just determination on the merits. There is no evidence to support the allegation that he was negligent or that he did anything wrong. There is no genuine issue for trial regarding the claim against the father.
[45] The counterclaim against Timothy Lever is therefore dismissed.
ii. Claim Against Bronwen’s Mother
[46] Bronwen’s mother was at home on the day of the incident. She knew that William and Bronwen had gone to the Katerbergs to play that afternoon. She saw them playing with other children in the Katerberg yard. When the children started playing, there were no adults in the yard.
[47] Bronwen’s mother saw Mr. Katerberg driving the riding lawnmower between 5:30 and 6 pm. She says that she did not necessarily appreciate that he was cutting grass or whether he was using the machine for another purpose. She did not see anyone else on the tractor with him.
[48] Bronwen’s mother knew that Bronwen was running and playing in the yard for approximately half an hour while Mr. Katerberg was operating the riding lawnmower. At one point, she saw William and Austin on the same section of the yard where Mr. Katerberg was on the riding mower, but they were not near the mower. She says that she thinks it caused her some concern that he was operating the tractor in the vicinity of the boys, but she cannot remember at this time.
[49] Bronwen’s mother believed that Mr. Katerberg would be extremely careful when he operated the lawn tractor while the children were playing in the yard. It was a huge property and she knew that the Katerberg children were also playing in the yard. She assumed that the children would be a safe distance from Mr. Katerberg’s mower. She also knew from experience that, if he asked her children to leave the property, they would.
[50] Initially, Bronwen’s mother was outside. After seeing Mr. Katerberg operating the riding lawnmower, she went inside to make dinner. She was working around the kitchen sink where there is a window. She was not able to see the backyard of the Katerberg property from that window.
[51] She did not see Bronwen during most of the time after she saw the lawnmower. She saw Bronwen running momentarily in the Katerberg yard as she briefly came into her line of sight.
[52] Bronwen’s mother agreed that it was her parental responsibility to make sure that her children were playing safely, irrespective of whether they were playing on her own property or the Katerberg property. In this case, the question is whether she exercised reasonable care to protect Bronwen from reasonably foreseeable dangers, in light of the accepted standard of care in the immediate community.
[53] Another neighbour knew that Mr. Katerberg was operating his riding lawnmower. She spoke to her daughter and gave her clear instructions to stay away from the riding lawnmower because she was concerned about her child’s safety.
[54] The following questions may assist a trier of fact in determining the extent of liability of Bronwen’s mother, if any:
i. Once she observed Mr. Katerberg driving his lawnmower in the yard where her five-year-old child was playing, did she have a duty to investigate whether he was mowing the lawn or using the machine for another purpose?
ii. Was she entitled to assume that, given the size of the Katerberg property, the children were a safe distance away from the lawnmower?
iii. Did she have a duty to take steps to ensure that Bronwen was not playing near the lawnmower?
iv. Did she have a duty to remove Bronwen from a situation that she perceived as potentially dangerous?
v. Did she have a duty to speak to Bronwen and give her direct and contemporaneous instruction regarding the dangers of riding lawnmowers?
vi. Did she provide appropriate supervision to Bronwen after she went into the house?
vii. Was she entitled to rely completely on Mr. Katerberg to act responsibly when using the lawnmower around Bronwen?
viii. Was she entitled to rely completely on Mr. Katerberg to supervise Bronwen?
[55] To answer these questions, the court must first determine the acceptable standard of care of a reasonably prudent parent in the immediate community. However, there is conflicting evidence on this overarching issue. The court needs to assess credibility and make factual determinations to determine the issue of liability. The conflicting evidence regarding the community standard creates a genuine issue requiring a trial.
[56] In addition, Bronwen’s mother and Mr. Katerberg may be held to be at fault. Since fault can be expressed in fractional proportions in negligence actions, it is in the interests of justice that the conduct of both parties be assessed together. Therefore, the claim against Mr. Katerberg and counterclaim against Ms. Rutherford shall proceed to trial.
[57] For these reasons, I dismiss the summary judgment motion in relation to Mary Beth Rutherford.
IV. COSTS
[58] I am of the view that there has been a mixed result on these motions, and therefore, no costs should be ordered. However, I am mindful that the parties may have exchanged relevant offers to settle. If a party wishes to argue that they have achieved a result that is the same or better than their offer to settle, the parties may make written submissions as to costs.
[59] The submissions shall be no longer than two typed pages, double-spaced, in addition to relevant Bill of Costs and written Offers to Settle. The party with the relevant offer to settle shall provide costs submissions by January 31, 2019; and the other party shall provide any response by February 14, 2019. If submissions are not received from either party by February 14, 2019, costs shall be deemed settled.
V. ORDERS
[60] For all of these reasons, the court makes the following orders:
The counterclaim against Timothy Lever is dismissed.
The remaining relief sought on the motion is dismissed. The claim against the defendant Allen Katerberg and the counterclaim against Mary Beth Rutherford shall proceed to trial.
Braid, J.
Released: January 15, 2019
COURT FILE NO.: C-525-06
DATE: 2019-01-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRONWEN ELIZABETH RUTHERFORD LEVER, WILLIAM JONATHAN RUTHERFORD LEVER, MARY BETH RUTHERFORD and TIMOTHY A. LEVER
- and –
ALLEN KATERBERG
Respondent
REASONS ON MOTIONS
CDB
Released: January 15, 2019