While at the Bramalea City Centre Mall with her mom and siblings, the plaintiff (a minor) fell backwards on an upward moving escalator. Unfortunately, her left hand got stuck in the step-to-skirt gap of the escalator resulting in a severing of her left index finger.
The plaintiff and her mother commenced a lawsuit against the owners of the mall, the Schindler Elevator Corporation and the Technical Standards and Safety Authority (the “TSSA”). Schindler was hired to inspect and maintain the escalators at the mall. In their regulatory capacity, the TSSA also periodically inspected the escalators. The escalators were subject to the inspection and maintenance requirements adopted by the TSSA.
The TSSA brought a partial motion for summary judgment which was ultimately dismissed.
The plaintiffs produced an expert report which concluded that the subject step/skirt gap exceeded the upper standard and that the step/skirt performance index (“SPPI”) also exceeded the standard. The report opined that Schindler failed to take corrective measures to reduce the SPPI when it was discovered just a few months prior to the plaintiff’s injury. The report also opined that if the TSSA carried out inspections at the one-year frequency recommended by industry standards, they more likely than not would have discovered the SPPI issue, which in turn should have resulted in an issuance of a compliance order and a shutdown of the escalator.
While the TSSA were able to produce detailed logs of their inspections and reports/orders, it likely did not assist that TSSA provided conflicting evidence on how often the escalator was periodically inspected. Furthermore, TSSA’s own evidence supported that the escalator had recurring issues with the anti-friction skirt, which the plaintiff’s expert opined increased the risk for step/skirt entrapment.
The Court held that a trier of fact would benefit from hearing evidence of all witnesses in order to determine the issues and assess the strength of the evidence, as well as provide a fair and just determination on the merits. The Court determined that TSSA’s actions / responsibilities were not clearly severable from the balance of the case against the remaining defendants, which would remain even if the motion was granted.
This decision highlights that actions with multiple defendants who may be jointly and severally liable under the Occupiers' Liability Act are unlikely to be successful candidates for a partial summary judgment motion.
See Gallo v. Bramalea City Centre Equities Inc., 2019 ONSC 1443
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