Case facts
In Lewandowska v Vander Woude, 2019 ABPC 115, the Plaintiff slipped and fell on the sidewalk adjacent to our clients' property. The Plaintiff claimed that our clients caused ice build up on the sidewalk due to the existence of an eavestrough that pointed down the driveway toward the sidewalk thereby making them liable for the slip & fall. Judge J.N. LeGrandeur granted summary judgment in our favour and dismissed the Plaintiff's claim on the basis that our clients did not owe a duty of care to the Plaintiff as they were not occupiers of the sidewalk.
The Ruling
The Judge recognized that a duty of care can arise if a homeowner lets a hazard spill off of their property onto the sidewalk, but the Judge found that on the evidence before him, he could not conclude that this had occurred. He indicated at para 31 that:
"the evidence before the Court in these photographs does not show, nor does the Plaintiff assert, that the slip was a result of a buildup of ice at the location as a result of drainage or water flow from the Defendants' property over that portion of the sidewalk. The fact that such a circumstance could occur does not mean that it did."
And finally, the Judge concluded at para 37:
"Although the Court empathizes with the Plaintiff... the Plaintiff cannot succeed in her claim; the Defendants have no duty of care in this instance. Accordingly the Plaintiff's claim is dismissed."
Take-away for Insurers
This matter applies the recently revised summary judgment principles enunciated in the case of Weir-Jones Technical Services Inc. v Purolator Courier Ltd., 2019 ABCA 49 and is therefore of interest to insurers because of the number of slip and falls that occur in Alberta per year. Specifically because many slip and fall claims are commenced without sufficient evidence, insurers and homeowners should consider bringing summary judgment applications early and often when there is minimal evidence in support of a plaintiff's claim.
About Mackrell International - Canada - Scott Venturo LLP is a full service business law firm in Calgary, AB and a member of Mackrell International. Mackrell International - Canada is comprised of four independent law firms in Alberta, British Columbia, Ontario and Quebec. Each firm is regionally based and well-connected in our communities, an advantage shared with our clients. With close relations amongst our Canadian member firms, we are committed to working with clients who have legal needs in multiple jurisdictions within Canada.
This article is intended to be an overview and is for informational purposes only.