On a recent successful summary judgment motion, Justice A.K. Mitchell dismissed a slip and fall action as the Defendant tenant was not an “occupier” of a municipal sidewalk within section 3 of the Occupiers’ Liability Act (“OLA”).
As the Plaintiff was exiting the Defendant’s store, she slipped on a snow-covered patch of ice. The fall occurred on the municipal sidewalk adjacent to the entrance of the Defendant’s store. As a result, the Plaintiff commenced an action in negligence, as against the tenant of the store. The Plaintiff did not sue the owner of the store, nor the municipality. Additionally, she did not make a claim in nuisance against the owner.
The Defendant brought the motion on the basis that there were no special circumstances that deemed the Defendant an “occupier” pursuant to the OLA or that would impose a duty of care at common law. The Plaintiff opposed the motion on the basis that the Defendant had “sufficient control” over the portion of the sidewalk where the Plaintiff fell, thereby deeming the Defendant an “occupier”. The Plaintiff also argued that water had leaked from an eavestrough and cause an accumulation of ice to form on the sidewalk where she fell.
Justice Mitchell discussed the case law when an owner may be an “occupier” of adjacent public property. The fact that the Defendant routinely cleared the sidewalk of snow and ice, would not suffice. Further, a 3-4 inch encroachment of the store’s brick wall, which separated the entrance and the neighboring store, extended onto the sidewalk was not significant enough to conclude that the sidewalk was used exclusively, or almost exclusively, by the customers of the store so as to assume control over it. Justice Mitchell also rejected the argument that the eavestough had leaked as no expert evidence had been put before the court.
As an aside, Justice Mitchell points out that in the event that the Plaintiff provided evidence to support a finding that the eavestrough caused ice to form on the sidewalk, this would have been the responsibility of the owner and not the tenant. Similarly, any nuisance claim would be actionable against an owner only.
This case outlines the basic principles to establish control over a municipal sidewalk and that absent special circumstances, a tenant of property adjacent to a public property will not be considered to be an “occupier” within the OLA.
Justice Mitchell’s aside comments also suggest pleading nuisance against the property owner could be a way to survive a summary judgment motion on these types of cases.