Around 8 a.m. on an October day in 2015, the plaintiff drove to a strip mall that was operated and maintained by the defendant, Value Industries. She parked parallel to a curb outside of a Save on Foods store with the intention of walking up the wheelchair ramp to the store. However, she was slightly away from the ramp when she stepped off the parking lot such that she tripped on a curb and fell. The plaintiff argued that if the curb had been painted yellow, as it had been in previous years, she would have noticed it and not suffered her subsequent injuries. 

Between 2009 and 2014, the defendant painted the subject curb on an annual basis at a cost of $5,000.00.  Annual repainting was required as the paint would eventually chip away. In 2015, the defendant decided to stop repainting the curb and sandblasted the remaining chipped paint. The cost for annual repainting had not gone up, such that the decision was not made for fiscal reasons, but instead, for aesthetics. 

An action was commenced and the defendant brought a summary trial application stating there was no breach of its responsibilities under B.C.’s Occupiers Liability Act

The Court noted that while the Act places a positive duty on an occupier, there is no presumption of a breach of duty. Rather, the onus is on the plaintiff to demonstrate how the defendant failed to take all reasonable steps required in the circumstances. The fact that she suffered injuries was not enough, in and of itself, to meet that burden.

The defendant relied on Gervais v. Do, a B.C. Superior Court decision, to argue that applying paint to a curb will not necessarily assist in indicating a height differential and, as well, that it is not reasonable for pedestrians to expect a complete matching of surfaces when walking in outdoor areas (e.g. a parking lot) with transition areas (e.g. to walkways and buildings).

The plaintiff argued that, unlike the surfaces in Gervais, there was no clear color contrast between the grey concrete roadway and the grey concrete curb she tripped on. As well, when the plaintiff arrived at the property, the subject curb was under the shade of the Save on Foods building, making the area dark and lacking in light contrast. The subject curb also sloped all the way from street grade, at the location of the wheelchair ramp, up to eventual full curb height. The plaintiff thus argued that the defendant should have taken the reasonable step of continuing to repaint the curb yellow, at no increased cost, in order to bring the curb and its gradient height to the attention of pedestrians. 

The Court disagreed and ruled in favour of the defendant.  The Court examined photographs of the curb and noted that it was structurally sound, not obscured by any landscaping feature and of a standard height. The curb ran along the edge of a sidewalk and did not pose any foreseeable risk or hazard, such that the defendant had no duty to remediate by repainting the curb yellow each year. The Court also agreed that any prudent pedestrian would reasonably expect there to be a change in elevation between the surface of a parking lot and a sidewalk.

The Court dismissed the plaintiff’s various arguments. The mere fact that part of an urban landscape may be in shade during various parts of a day did not mandate bright yellow painting.  The Court also noted that the plaintiff was familiar with the subject parking lot. Despite knowing that there was a curb in the area, she chose to step off the parking lot onto the sidewalk. She believed she was heading towards the ramp built into the curb, tried to anticipate its position and angle, but was wrong. As such, the Court found that the plaintiff’s unfortunate accident was caused by her own inattention.

This decision highlights that trip and fall claims should involve a scrutiny of the level of care exercised by a pedestrian, as well as a pedestrian’s familiarity with the area of the fall.  It also highlights that common sense will prevail in disputes related to whether an occupier, under the prevailing legislation, has a duty of care to bring specific features of an urban landscape to the attention of pedestrians.

See Herron v. Value Industries Ltd., 2019 BCSC 878

Shalini Thomas

Shalini defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, as well as accident benefits litigation and arbitration and priority and loss transfer disputes.

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