The Plaintiff suffered injuries after tripping on a speed bump in a parking lot owned by the Defendant. While the parties agreed to damages, the matter proceeded to trial on the issue of liability. The Court considered whether the Defendant breached its duty of care under the Occupiers’ Liability Act.
In describing the accident, the Plaintiff admitted that she did not know what caused her to trip and fall. In fact, she did not even know that she had tripped on a speed bump. It was not until she returned to the parking lot two weeks later, after meeting with a lawyer, when she noticed that there was a piece of the speed bump that was missing. Upon seeing this, the Plaintiff claimed that this was what caused her to fall. Specifically, in her Examination for Discovery testimony, which she confirmed at trial, the Plaintiff explained “there was a piece missing and maybe that’s [where] I tripped and then I fell.”
Both parties called forensic consulting engineers as experts to testify as to whether the speed bump was compliant with applicable codes and standards. On hearing this evidence, the Court found that the speed bump markings were compliant with the standard practice for walking surfaces. Further, the markings provided advanced warning to the raised pavement service, making it clearly visible to prudent road users. The Court noted that the yellow border and grid markings provided a clear contrast to the surrounding black asphalt surface. In reviewing the photographs taken, the Court concluded “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.” Further, the Court found that even if the speed bump was not painted solid yellow and/or had an irregular shape on the side of the speed bump, this was not a breach of the standard of care.
In order to be successful, 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 speculation. The Court found that the Plaintiff failed to meet this test. In the present case, at best, the Plaintiff was only able to advance a theory based on her subjective belief that she tripped either (1) on the speed bump; or (2) “maybe” it was because of a “broken” or “missing” piece. However, there was no objective evidence to establish that the fall was because of a deficiency of the speed bump markings or its condition. Therefore, the Claim was dismissed.
This case serves as an important reminder that the burden is on the Plaintiff to establish that the Defendant has breached their duty of care under the Occupiers’ Liability Act. Mere speculation is not enough.
See Cannito v. Madison Properties Inc., 2018 ONSC 6190