Torts — Occupiers' liability or negligence for dangerous premises — Duty of occupier — Invitees, liability of particular occupiers (incl. duty and standard of care) — Retail business — Sidewalks, walkways, ramps, etc. — Damage awards — Injury and death — Leg injuries — Fibula or tibia — Special damage awards — Loss of wages — General damage awards — Loss of earning capacity — Pain and suffering, loss of amenities and other non-pecuniary damages.

   Action by Blake for damages for personal injury.  Blake was shopping at a grocery store leased by the defendant, Buy-Low Foods, in a plaza owned by the defendant, Anthem Properties. After she returned her shopping cart to a corral located on the sidewalk in front of the store, she turned and fell off the edge of the curb onto the roadway.  When she fell she fractured her tibia and fibula.  She spent four days in hospital and was in a wheelchair for six months.  Her prognosis was for residual symptoms and deformity on a permanent basis.  She was at risk of developing post-traumatic osteoarthritis of the ankle.  She had a limited work history and suffered from fibromyalgia, depression and headaches prior to the accident.  The corral held two rows of carts.  Because it was not bolted to the sidewalk, it moved back and forth and from side to side.  An independent witness stated that at about the same time as the accident, the corral had moved so far over on the sidewalk that she had to lift her shopping cart off of the sidewalk onto the road to get by the corral to enter the store.  There was a ramp directly in front of the entrance to the store, but the ramp did not extend as far as the end of the corral.

   HELD:  Action allowed.  The corral had moved into the sidewalk far enough that there was not enough room for Blake to take one full step to the side from the end of the corral before landing on the edge of the curb as she headed to the parking lot.  Her foot twisted on the curb, causing her to fall.  She probably would not have fallen if the ramp in front of the entrance had extended as far as the corral.  Blake had exercised reasonable care for her own safety.  The movement of the corral created an unusual danger.  Buy-Low knew that the corral was not bolted and was subject to moving, particularly as more carts were placed into it.  Those facts also should have been known to Anthem.  Both defendants were equally liable to Blake for her injuries because either of them could have avoided the accident with minimal cost by bolting the corral.  Anthem also could have ramped the curb further along the front of the store.  Blake was awarded non-pecuniary damages of $50,000, $12,000 for past wage loss, $20,000 for loss of earning capacity, special damages of $2,664, and damages for spousal assistance in the amount of $3,041.

Statutes, Regulations and Rules Cited:

   Occupier's Liability Act, R.S.B.C. 1996, c. 337, s. 1.

Counsel:

       DILLON J.:—

Introduction

 1      On December 2, 1999, the plaintiff, Kathleen Blake, returned her shopping cart to the corral after grocery shopping at the defendant's Buy-Low Foods Ltd. ("Buy-Low") store in Port Alberni, British Columbia. When she turned to return to her vehicle, she fell over the curb of the sidewalk, breaking her fibula and tibia. The grocery store is located in the Northport Plaza owned by the defendant, Anthem Properties Corp. ("Anthem"). Both defendants deny any liability for the plaintiff's fall. Damages are contested.

Liability

 2      The plaintiff attended at Buy-Low to shop for groceries on December 2, 1999 at about 3:30 p.m.. She had shopped at Buy-low on previous occasions and was familiar with the layout in front of the store. She had exited the store and placed her purchases in her car when she went to return the cart into the corral located on the sidewalk in front of the store, immediately to the left of the entrance. This was a different corral than from where she had obtained the cart. Just after the plaintiff put her cart into the corral, she turned to return to her car. As she turned, her left foot went onto the edge of the curb and turned inwards, causing her to fall onto the roadway. She had not even taken one full step. The plaintiff denied that she somehow twisted her ankle or stumbled. An incident report of the accident prepared by the store manager who attended upon the plaintiff reported that she slipped and fell from the sidewalk.

 3      The corral held two rows of carts and was not bolted to the cement surface of the sidewalk. As a result, the corral tended to move. At issue in this trial is whether the corral had moved into the sidewalk on December 2, 1999, so narrowing the passageway to the extent that the plaintiff had no room to move even one step away from the end of the corral without falling off the curb onto the roadway. Also at issue is whether the ramp at the front of the store entrance should have extended further along the curb of the sidewalk where customers returned or obtained carts so as to avoid the almost nine inch drop-off from the curb.

 4      On December 2, 1999, Melissa Netzer was also shopping at Buy-Low around 3:30 p.m.. After securing a shopping cart, she proceeded to the entrance of the store along the sidewalk. She noticed that the carts in the corral had moved so far into the sidewalk that she was unable to pass with her cart. She had to physically lift her cart off of the sidewalk onto the road in order to get by the corral to go towards the entrance of the store. When she exited the store about twenty minutes later, she saw a woman lying on the road near the same corral that had blocked her path a few minutes earlier. A Buy-Low employee whom she knew was attending to the fallen woman. The fallen woman was Kathleen Blake, although Ms. Netzer did not recognize her at the time.

 5      Several Buy-Low employees testified where the corral was usually kept and some said that it was there on December 2, 1999. The store manager said that the corral was against the wall on December 2, 1999 because he would have moved it back at the time if he had noticed that it was out from the wall. However, he also said that he had never noticed it out from the wall before and so would have had no reason to consider the placement of the corral when he assisted the plaintiff. He was also unaware whether the corral had been bolted to the cement at the time. He was aware that there was only room for one cart to pass the corral if it was in place along the wall of the store and thought that this was "wide enough" even though he had never measured the space prior to this incident and had never specifically considered how much space a pedestrian would need to pass the corral. The double corral was five feet wide and the sidewalk was eight feet six inches wide, leaving about three feet for pedestrians, assuming that the corral was tight up against the wall of the store. The carts used at the time were twenty-three inches wide. The store manager knew that two carts could not pass on the sidewalk with the double corral in place but expected customers to use the roadway to pass one another. This meant standing down from the curb onto the roadway because the curb was not ramped the full length in front of the store. After the incident, the store manager expressed to an employee that he was glad that the accident happened outside of the store, thinking that Buy-Low was therefore not liable for the accident.

 6      Another employee who had been in the office prior to the accident remembered "roughly" where the corral was on that date and said it was where it usually was, near the wall of the building. She had never noticed the corral away from the wall. Still another employee said that the corral was usually kept against the wall and said that she did not notice anything different on December 2, 1999 when she went outside to assist the plaintiff. This employee said that there was a lot of confusion at the time and she was going back and forth into the building relaying instructions. She did not look or examine where carts were. She also acknowledged that the corral was not bolted down and moved around, but said that she only noticed that it moved backwards and forwards, not sideways into the sidewalk.

 7      The maintenance man from Anthem had never noticed the corral away from the wall and had never noticed if it was bolted to the sidewalk or not.

 8      The employee whose duty it was to see that the carts were in place knew that the corral was not bolted and that it moved, including from side to side if lifted. He acknowledged that it was possible for one man or even a dog tied to it to move it from side to side, especially when empty of carts. He said that the flat iron holding the two sides of the corral together made it easier to move side to side rather than forwards and backwards. He also said that when there were a lot of carts to return to the corral, it was easier if the corral was at an angle from the wall. The boys who returned the carts from the parking lot angled the carts into the corral. He said that it was natural that the corral would end up at an angle to the wall of the building.

 9      A former employee who was employed and present on December 2, 1999 said that the corral was not bolted and that it moved around. She said that if there were a lot of carts to go into the corral, one would have to pull it out so that all of the carts could fit in. She confirmed that the corral moved away from the wall. She described that the curb was high where the carts were kept and that when one turned, you could not see the drop from the sidewalk onto the roadway. In fact, she had just about fallen a couple of times. This witness also said that she had passed on several complaints from customers about the narrowness of the sidewalk with the double wide corral. This was strongly denied by those to whom she said she passed on such statements. Although this witness lives across the street from the plaintiff, she said that until recently, she was unaware that the plaintiff had been involved in this incident and she was not socially friendly with the plaintiff.

 10      From pictures entered into evidence, it is apparent that the corral made marks on the sidewalk that show that it moved sideways as well as back and forth along the sidewalk. The pictures also show that the corral moved away from the wall when there were carts inside it. The pictures further demonstrate that the corral moved along the sidewalk so that the distance from the end of the corral to the ramped area directly in front of the store entrance onto the paved roadway varied. The plaintiff's spouse was able to lift the corral with relative ease even when there were carts in it. The plaintiff and her spouse took the pictures after the accident and before the corral was moved into the parking lot and replaced by a single wide corral on the sidewalk in front of the store. Although not showing the exact position of the corral on December 2, 1999, the pictures indicate the movement of the corral and its position in relation to the ramp.

 11      The plaintiff testified that she has seen the corral away from the wall on many occasions, although she did not particularly notice its placement on December 2, 1999. She previously had to walk on the roadway because there was not enough room on the sidewalk for two people to pass with the double wide corral there. She said that there was a lot of congestion in the area.

 12      I accept the evidence of Ms. Netzer as to the position of the corral on the sidewalk at the time that the plaintiff returned her cart on December 2, 1999. She had a specific memory that was not shaken by the suggestion that she knew the plaintiff. She did not recognize the plaintiff as the woman who had fallen and her relationship with the plaintiff was not proven to be terribly significant. Her evidence is consistent with the plaintiff's evidence of her fall and with the preponderance of evidence as to the sideward movement of the corral. I do not accept the evidence of Buy-Low employees that the corral was always along the wall and that it never moved away from the wall. These employees had discussed their evidence together before testifying and none had a specific recollection of the exact placement of the corral at 3:30 p.m. on December 2, 1999. The one employee who put coats on the corral that day could only remember "roughly" where the corral was situated when she attended to the plaintiff. These employees' testimony as to the "usual" placement is not convincing in face of the other evidence that the corral was not bolted and moved not only backwards and forwards but side to side. The employee responsible for the corral admitted that it moved away from the wall as more and more carts were placed into it and that this was a natural movement of the corral. This movement was evident in the pictures of the corral. Not only did the corral move forwards along the pavement, but it also moved sideward away from the wall of the store into the sidewalk, thus narrowing the passageway available for shoppers on the parking lot side of the sidewalk. This movement meant that the end of the corral tended to swing outwards into the sidewalk as more and more carts were placed into it, especially if the carts extended beyond the corral itself. The placement of the corral near the entrance to the store was considered a convenience to shoppers to encourage more shopping and avoided placement of the carts in the store itself, which would have taken up too much sales space.

 13      I found the plaintiff to be a reliable and credible witness. Her testimony was not shaken on cross-examination, despite attempts to characterize her fall as independently stumbling and twisting her ankle. Any apparent inconsistencies in her evidence about where she got her cart on December 2, 1999, or when faced with her medical records, were not so pertinent as to disturb my conclusion about her testimony. She was straightforward, responsive and did not exaggerate.

 14      The sidewalk alongside the corral was curbed to a depth of eight and a half inches with a ramp nearer to the entrance of the store that sloped towards the roadway. The curb was painted yellow to indicate an elevation change. There was no ramp from the curb to the roadway alongside the end of the corral, leaving several feet at least between the end of the corral and the start of the ramp, depending on how far backwards the corral was at any given time and how many carts were in the corral. The ramping was only directly in front of the entrance to the store and did not extend further. Customers were expected to step down from the sidewalk over the curb to the roadway if they proceeded directly to the roadway and parking lot after placing a cart in the corral. There was about seven or eight feet before the ramp started from the end of the corral in its usual placement. However, this distance varied from as little as three or four feet to nine feet according to the evidence.

 15      Anthem had an inspection done of the property before it purchased the plaza in 1997. The inspector testified that the curb near the corral in front of the store was 8 1/2 to 8 3/4 inches high. He said that most shopping centres avoid curbs as the more modern approach. He agreed that the ramp did not extend as far as the end of the cart corral and that it would have been a good idea to have extended the ramp because the expense was minimal. As a result of the inspection report, in the summer of 1999, the sidewalk was repaired and the ramp was adjusted so that there was not such an abrupt edge near the entrance of the store. The ramp was feathered into the roadway, gradually adjusting to the height of the curb. However, the ramp and its feathering did not extend to the end of the double wide corral. Anthem gave no thought to extending the ramp the full length of the storefront or to the end of the corral, even though extending the ramp would have cost relatively little in the summer of 1999 when the other improvements were made. The manager of the plaza had never noticed that the corral was not bolted to the sidewalk and had no prior concerns about the double wide corral on the sidewalk.

 16      The manager of the grocery store phoned the plaza manager immediately after the accident to advise what had happened. The plaza manager told Buy-Low to remove the carts from the sidewalk. After further discussion, Buy-Low replaced the double wide corral with a single wide corral on the sidewalk. This appeared to both defendants to be a reasonable compromise that would add another twenty-four inches to the sidewalk, and also handle a public relations concern. The double corral was placed in the parking lot.

 17      The double corral was owned by Buy-Low. Its employees were responsible for collecting and storing the grocery carts. The lease agreement with Anthem required Buy-Low to ensure that its shopping carts were collected and stored in common areas so as not to unduly interfere with or disrupt the use of the area by customers.

 18      It was apparent from both the manager of Buy-Low and the manager of the plaza that specific responsibility for the corral and carts was not discussed prior to this incident. However, Anthem considered that it had the authority under the lease to tell Buy-Low to remove the corral from the common area of the sidewalk if it had any concerns about placement of the corral.

 19      I conclude that the double corral had moved into the sidewalk passage area by the late afternoon of December 2, 1999 so that there was not enough room for the plaintiff to take one full step sideward from the end of the corral before landing on the edge of the curb as she headed to the parking lot. Her foot twisted on the curb, causing her to fall off the curb into the roadway. This fall probably would not have happened if there had been a ramp from the edge of the sidewalk onto the roadway similar to the one that existed right in front of the door to the store. The plaintiff would have been able to check her movement with her other foot and so secure a better landing.

 20      I also conclude that Buy-Low knew that the corral was not bolted to the pavement and that it moved not only backwards and forwards, but also sideward into the sidewalk, particularly as more and more carts were moved into it. It was known that the placement of the corral caused narrowness of the sidewalk so that to pass another customer with a cart, customers had to use the roadway instead of the sidewalk. Placement of the double corral on the sidewalk was purposefully intended to encourage shoppers to take a cart in order to buy more goods at the store and to avoid having the carts inside the store itself. Anthem had made a decision not to extend the ramp beyond the front of the door to the store and did not consider extending the ramp to the end of the corral. As a result, customers who returned a cart to the corral were expected to manoeuvre over the curb directly in front of the end of the corral. When the corral extended across the sidewalk, this left too little room to turn around.

 21      Both defendants have admitted that each is an occupier within the meaning of "occupier" in section 1 of the Occupier's Liability Act, R.S.B.C. 1996, c. 337. The question in this case is whether it was reasonable to see, in all of the circumstances, that the double cart corral that had moved out onto the passageway of the sidewalk, and/or that the almost nine inch curb along the end of the corral, rendered the sidewalk unreasonably unsafe for those using the premises. Did the defendants take reasonable care, in all of the circumstances, to see that Kathleen Blake was reasonably safe when she used the sidewalk in front of the Buy-Low store at the Northport Plaza?

 22      In consideration of this question, one factor to consider is that many others had passed this way without incident (Cahoon v. Wendy's Restaurant of Canada Inc., [2000] B.C.J. No. 762 at para. 16; Scriven v. Crescent (Pacific No. 240) Branch of The Royal Canadian Legion, [1985] B.C.J. No. 84 (S.C.) at para. 5; Crerar v. Dover, [1984] B.C.J. No. 2851 (S.C.) at paras. 22-27, app. denied, [1985] B.C.J. No. 2508 (C.A.)). I accept that no other incidents involving injury came to the attention of Buy-Low or Anthem. However, it was known to Buy-Low that the sidewalk was so narrow with the double wide corral that customers were required to step down onto the roadway to pass one another under the best of circumstances, that is, when the corral was right up against the wall of the store. It was also known to Buy-Low that the corral was not bolted to the cement sidewalk and that it angled out away from the wall of the store, especially as the day wore on and more and more customers replaced their carts or employees brought the carts from the larking area. These facts should also have been known to Anthem, whose inspector said that a feathered curb is the more modern approach to safety in shopping centres.

 23      There was an unusual danger created because the double corral moved into the sidewalk, so narrowing the already narrow passageway even further. On the afternoon of December 2, 1999, there was not even enough room for the plaintiff to take a full step sideward away from the end of the corral. It should have been foreseeable that the angle of the corral away from the building created a danger for those returning carts to the corral. Customers such as the plaintiff could not have expected that a one step turn away from the corral would leave them precariously stepping onto the edge of a curb.

 24      Although several employees of Buy-Low testified that he or she regularly returned carts to the double corral and that the corral was usually in place beside the wall of the store, most were not aware that the coral was not bolted to the cement or that it moved sideward. The employee responsible for the carts knew that it naturally moved sideward from the wall when carts were placed into it. No employee specifically recollected moving the corral into place that day and no employee testified to a normal routine to inspect the sidewalk at regular intervals. The evidence of Ms. Netzer is determinative as to the placement of the corral when the plaintiff fell. These circumstances are distinguished from the regular system of maintenance and inspection seen in Ball v. British Pacific Properties Ltd., [1991] B.C.J. No. 3250 (S.C.).

 25      This danger was compounded by the situation of the curb. Anthem had not ramped the curb directly in front of the end of the corral, which could be up to ten feet away from the door to the store. The only ramping to the roadway was directly in front of the doors to the store. The ramping was to ensure the safety for those entering the store or returning carts to the corral, but it was not long enough. It failed to extend the whole distance of the corral to where customers could be expected to turn after they replaced the carts. This created an unusual danger, especially when the unbolted double corral narrowed the sidewalk as it filled up.

 26      Was this unusual danger ameliorated by the yellow paint along the curb? Unlike the situation in Trojan v. Buena Vista Holdings Ltd., [1987] B.C.J. No. 2919 (S.C.), there were no yellow diagonal markings leading from the curb onto the roadway to further mark the curb. The ramped portion of the curb was only a few feet away and clearly marked in yellow. It could reasonably have been expected that the ramp would extend the whole front area used to return the carts.

 27      There is no evidence that the plaintiff was disturbed by anything or that she was in a hurry when she fell. Although she had shopped at this Buy-Low before, I accept that she had never obtained her cart from this location before. She just took a step and fell off the side of the curb. The position of the corral misled her as to the amount of sidewalk available to her after she returned the cart. Although the curb was marked in yellow, the plaintiff could have reasonably expected to have room to take a step away from the corral without falling over the curb. She also could have reasonably expected that there would not be a curb immediately where customers returned their carts near to the doors to the store. There is no suggestion that the plaintiff had noticed the position of the corral in relation to the curb before she returned her cart to the corral. I am satisfied that she exercised reasonable awareness in all of the circumstances. The circumstances at the end of the corral, a few feet from the door to the store, were not so different from the circumstances nearer to the doors on front of the store that the plaintiff should have been alerted to the danger of the drop of the curb. I find that the plaintiff used reasonable care for her own safety.

 28      The defendants are liable to the plaintiff for her injuries. In the circumstances, they are both equally liable for the incident because either could have avoided the accident with minimal cost by bolting the corral to the cement, by having a single wide corral, or by ramping the curb further along the front of the store. Aside from the last condition, all were within the ability and responsibility of both defendants.

Damages

 29      The plaintiff fractured the tibia and fibula of her left leg. She was initially taken to West Coast General Hospital in Port Alberni but transferred by ambulance to Comox for specialized care. She underwent an open reduction and internal fixation of the fractured left tibia and fibula. She remained in hospital for four days and was immobilized by a cast for six weeks. She used an air cast from May to December 2000. She remained in a wheelchair for six months as her weight-bearing ability was delayed. She eventually moved to crutches and a walker. The internal fixation devices were removed in January 2001. Although there was solid union, there remains residual angulation of the distal tibial fragment of approximately 15 degrees. There is also residual superficial nerve entrapment, pain and mild stiffness in the ankle.

 30      Her prognosis is for residual symptoms and deformity on a permanent basis. The orthopaedic surgeon who followed her aftercare said that these symptoms will prevent her from taking part in heavy or very heavy physical activity and any activity requiring excessive standing, climbing, squatting and running. She is at risk of developing post-traumatic osteoarthritis of the ankle.

 31      The plaintiff needed personal assistance for three weeks. Her spouse took time off work to attend to her and lost wages agreed at $3,041.87. The plaintiff attended physiotherapy and received professional home care assistance. She performs exercises daily. Her leg still swells and is painful if she sits for long periods of time.

 32      Prior to her fall, the plaintiff enjoyed painting, travelling in her recreation vehicle, camping, walking, babysitting her granddaughter, and a happy marital life. None of these activities have been resumed to their prior status.

 33      The plaintiff suffered from fibromyalgia, depression and headaches prior to the accident and was taking a number of medications for these conditions.

 34      The plaintiff has a limited work history. She did not work for over six years at the preference of her spouse but began small jobs about a year and a half prior to the accident. She babysat occasionally, two or three times per week without a fixed schedule, earning $200 per month. However, she found babysitting exhausting and difficult. She also drove foster children to and from school, earning $200 per month when school was in session. She had recently quit work as a telephone representative for a charitable organization after a month's employment and was unlikely to have resumed that occupation because she did not like it. Although she wanted to sell her paintings and was talented, and she had some opportunity, this was not a real venture prior to the accident. I do not consider it a realistic source of income prior to or after the accident. She had looked for work as a gallery assistant prior to the accident, but was not seriously looking for work that she was not interested in doing. Her income for disability purposes was declared at $600 per month.

 35      As a result of the fracture of her tibia and fibula, the plaintiff has suffered a permanent disability that puts her at risk of developing osteoarthritis. She is limited in her activities. Although the plaintiff sought an award in the range of $70,000 to $90,000, the cases to support an award of $75,000 to $80,000 (Mosher v. Ferrari, [1998] B.C.J. No. 252 (S.C.) and Lowe v. Jenkinson (1995), 12 B.C.L.R. (3d) 50 (S.C.) are distinguishable as involving other injuries or an abnormal management problem. The cases of Boyle v. Taylor, [1991] B.C.J. No. 3748 (S.C.), Trask v. Pomeroy Enterprises Ltd., [1998] B.C.J. No. 2916 (S.C.), Miksch v. Hambleton, [1990] B.C.J. No. 1810 (S.C.), Van Loon v. British Columbia (Ministry of Housing), [1996] B.C.J. No. 1463 (S.C.), and Wright v. Holt, [1997] B.C.J. No. 2259 (S.C.) Nanaimo Registry No. 15185 (October 7, 1997) are more analogous and indicate a range of $35,000 to $55,000. In these circumstances, an award of $50,000 for non-pecuniary damages is appropriate.

 36      The past wage loss of the plaintiff is difficult to assess, but, realistically, should be based upon $200 per month for ten months per year for the driving job, and an amount of $200 per month for babysitting. The plaintiff had not really tried to gain other employment before the accident and was disinclined to work for work's sake. Any further amounts for past wage loss have not been proven. Damages for past wage loss are assessed at $12,000.

 37      Special damages are assessed at $2,663.98.

 38      In terms of future income loss, the capacity of the plaintiff to work was already significantly impaired prior to the accident. While there is no doubt that the permanent injury suffered by the plaintiff in her fall limits her in her capacity to perform heavy physical work, or work that involves standing or running, the plaintiff was not inclined to perform work of that nature and had been very selective in her choice of part-time labour. An appropriate award for loss of earning capacity is $20,000.

 39      The parties have agreed that the loss occasioned by the necessary assistance provided by the plaintiff's spouse is valued at $3,041.87.

 40      In summary, the plaintiff is awarded:

 41      The plaintiff is also entitled to her costs on the scale of 3 unless the parties want to be heard on this matter.

DILLON J.

QL Update:  20021206
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