Anyone who has control over a property, such as a property owner or manager, has an obligation to keep persons coming onto their property safe from foreseeable harm. The Occupiers’ Liability Act (1990) defines the duty of care that an occupier owes, which essentially includes taking reasonable care to ensure that persons entering onto the premises are kept reasonably safe while on the premises. And, whether or not an owner, landlord or other ‘occupier’ is liable for injuries sustained by a person brought onto their property generally rests on whether they took ‘reasonable care’, given the nature of the accident and the unique circumstances surrounding the case.
Rizzi v. Marvos is a civil action involving a tenant who alleged that they became injured as a result of their landlord’s improper storage of construction materials in the storage room of their apartment building. The plaintiff was a young woman when she injured her leg and as a result, developed neuropathic pain and fibromyalgia. Fibromyalgia is a form of chronic pain characterized by generalized and widespread musculoskeletal pain. In this case, the plaintiff’s chronic pain eventually prevented her from continuing to work in any job.
The injury occurred when the plaintiff went to the storage room of her apartment building to store some paint cans. When she entered the storage room, she found that metal sheets, the size of doors, and boxes of construction materials were piled on the floor and blocking her locker. The plaintiff decided to relocate the metal sheets away from the lockers herself rather than contacting the landlord or waiting until the materials were moved. She fell backwards onto a box of construction materials when she lost her balance while trying to move some of the heavy metal sheets. Then, several metal sheets landed on her legs and her left leg was injured when she tried to pull it out from under the sheets.
The plaintiff sought treatment for her injury, at the hospital and then from her doctor. Two weeks later, she tried to return to work, but continuing pain in her left leg made it difficult to walk and she soon also developed low back pain and had difficulty sleeping. She underwent several treatments, including physiotherapy, acupuncture and chiropractic, and also consulted with an orthopaedic surgeon.
One year following the accident, a physiatrist diagnosed the plaintiff as having neuropathic pain due to damage in the peripheral nerves of her leg. A neurologist later confirmed this diagnosis, and indicated there was no treatment to alleviate her condition. The plaintiff subsequently developed fibromyalgia, which caused insomnia, fatigue and finally, depression. At times, the plaintiff tried to work part-time, but generally found that her symptoms made it impossible to work regularly. She was subsequently also diagnosed with ‘complex regional pain syndrome’ by a rheumatologist, and medical evidence presented in her case suggested that she was ‘quite significantly impaired’ and her condition was likely to worsen with age.
In the original trial, the jury assessed damages for the plaintiff (the tenant) at $945,979.65, including pre-judgement interest, and the Court found the plaintiff 75 percent contributorily liable for her injuries. However, on Appeal, the Ontario Court of Appeal reapportioned fault for the accident, finding the landlord 75 percent liable since the Court concluded that the landlord created the danger and then did not takes steps to fix the problem or at least, warn its tenant of the danger. As a result of this ruling, the plaintiff was awarded $738,734.73 in damages, plus pre-judgement interest.
Lawsuits are commonly filed on the basis that a particular plaintiff was injured due to a dangerous condition on a property, but each case must be considered individually on its merits to determine if there was a breach in the standard of care. For example, in Dhaliwal v. Premier Fitness Clubs Inc., the plaintiff alleged that an injury to his finger (causing him to lose the end of his finger) resulted when his shoes were wet and slipped off a weight machine, which occurred because the fitness club failed to clean up a spill on the floor. In Dhaliwal, the Court found the defendant and plaintiff each 50 per cent liable for the plaintiff’s injury since: although the fitness club had a reasonable maintenance system in place to fix dangerous conditions, there was no evidence that any procedures were followed or that a cleaning crew was on duty on the day of the accident; on the other hand, the Court found the plaintiff should have foreseen the risk of harm if he didn’t clean off his shoes before using the leg press machine.
If you were injured due to a hazard or dangerous condition at a restaurant, amusement park, store or another property, you may be entitled to compensation for your losses. Call Stevenson Whelton MacDonald & Swan to discuss the unique circumstances of your accident and find out if you have a strong claim for compensation. We welcome your questions and will give you an honest assessment of your case.