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“X” marking the spot for your Slip and Fall Case (Ontario)

Since the Christmas Holiday, our law firm has received dozens of phone calls from prospective clients with respect to their slip or trip and fall cases. The way these accidents occurred all vary. We see a number of snow, ice, slush or general slippery conditions caused by damp condition claims. We also see a variety of pot hole or crack claims. We also see uneven surface or poorly maintained stair claims.

The mechanism of the falls vary, as to the injuries sustained. From ankle fractures, femur fractures, broken arms, broken wrists, separated shoulders, shattered elbows, even broken noses. Ouch!

The reality is that this is now slip and fall season and we handle a lot of these cases around this time of year.

As discussed in a previous Toronto Injury Lawyer Blog post, there are many pit falls for slip and fall cases. The most important which we tried to address was the issue of liability. This is concept of proving negligence (or wrong doing) agains the party you are seeking to sue (normally the property owner, or the company responsible for the maintenance/care of that property).

The thing our lawyers try to hammer home is just because a slip or trip and fall happened, and injuries were sustained, doesn’t necessarily mean that there will be a winning personal injury case there. The Plaintiff needs to establish that the Defendant was negligent (or at fault, or responsible) for said slip and fall accident.

Without establishing liability, there is no case to be had; regardless of how significant the injuries may be.

This is why sometimes in slip and fall cases, the injuries are almost secondary to how the actual slip and fall took place. In certain instances, the parties will AGREE on damages at trial, and argue only on liability.  This is exactly what happened in a case which went all the way to the Ontario Court of Appeal in Kamin v. Kawartha Dairy Ltd. 2006 CanLII 3259 (ON CA).

In this case, damages were agreed upon at trial in the amounts of $87,500 for general damages, $7,114.25 for special damages and the Ontario Ministry of Health’s subrogated interest of $9,617.01. That means if the Plaintiff won on the liability and causation issues, she would be entitled to the damages as agreed upon between the parties. It also meant that the issues of damages would not have to be examined at trial, thereby expediting the trial itself and making it more stream line.

Ms. Kamin attended at the Kawartha Dairy in Minden, ON with her husband and grandchildren to get some ice cream. It’s a popular spot and there were many cars and people ind the parking lot.

They were on their way to the queue for ice cream.  At trial, Ms. Kamin estimated that she took 20 to 30 steps and then she fell.  She had no recollection where in the parking lot she fell, how she fell, or how close she was to the queue.  She experienced tremendous pain.  Like Mrs. Kamin, Mr. Kamin also had no recollection of where they parked except that it was near the road and closer to the south end of the parking lot than the north where the trailers were parked.  He owns some plazas and noticed that the parking lot and the paving were not well maintained.  After Mrs. Kamin fell, he testified that he observed that the ground beside her was uneven, chipped and broken up.  It needed resurfacing.  He could not say where Mrs. Kamin fell nor could he point out the chipped or broken area in any of the photographs subsequently taken of the parking lot.  15 people ran over to assist and four or five people helped her into their car but their names were not obtained.  She was taken to the hospital in Minden and then went by ambulance to Mount Sinai Hospital in Toronto.  She had broken her hip and then experienced heart failure.  She has had a lengthy recovery and at the time of trial walked with a metal clip in her hip. Goldfinger-logo-icon-300x300

The trial judge dismissed the Plaintiff’s claim, in large part, because the Plaintiffs could not pin point exactly where in the parking lot Ms. Kamin fell. They could not use an “X” to mark the spot of the fall:

“Turning to the application of these principles to this case, regrettably for Mrs. Kamin, I am unable to find in her favour.  She presented as an honest and forthright witness who has experienced tremendous pain and upset as a result of this unfortunate incident.  That said, a court cannot decide cases on the basis of sympathy and compassion alone.  Neither of the Kamins knew where in the parking lot or how Mrs. Kamin fell.  They do not know where they parked.  There was no record of any of the possible witnesses who might have assisted and the defendant was not advised of the claim until April, 2000, approximately nine months after the event.  The earliest pictures of the parking lot were taken in December, 1999.

But, the Ontario Court of Appeal reversed the trial judge’s decision and found in favour of the Plaintiff stating:

The trial judge erred in her causation analysis by setting too high the onus that the plaintiff was required to meet. There may be some cases where the ability to identify the exact location of a fall will be a significant factor in the causation analysis. However, this was not one of them. There was considerable uncontradicted evidence that the defendant’s entire parking lot was in very poor condition. The paving was uneven, with many depressions and fissures. The disrepair was so extensive that it was not surprising that the plaintiff was unable to point with precision to the location of her fall. There was no evidence suggesting any alternative cause of the accident other than the state of disrepair of the parking lot. On the record in this case, the plaintiff’s failure to recall the precise location of her fall should not have resulted in the trial judge’s finding that she had failed in the proof of the cause of her injuries. Had the trial judge not erred in her causation analysis by setting too high an onus for the plaintiff to meet, there was ample evidence on which to find that the plaintiff’s injuries were caused, or materially contributed to, by the defendant’s negligence. Appeal allowed

Regardless of the outcome of this decision, knowing where you fell, and having the ability to pin point with a reasonable degree of accuracy where an accident victim fell is important. What’s also important are having witnesses to corroborate the fall, along with the location of the fall as well.

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