Summary judgment can be a powerful tool in a litigator’s toolkit, if the Court can be persuaded that there is no genuine issue for trial. There appears a general judicial reluctance however to summarily dismiss an action, with the remedy oftentimes reserved for the most clearest of cases. The recent decision of Lavoie v. Rainbow Centre Mall, 2021 ONSC 4166, is a case where summary judgment was granted.
In Lavoie, the 14 year old plaintiff sustained serious personal injuries, including fractures to his right leg, pelvis, wrists and jaw, when he grabbed onto the handrail of an escalator with his body on the outside of the escalator, lost his grip at the top and fell to the ground from a considerable height.
These photographs are not of the plaintiff, but show the same type of stunt performed by the plaintiff:
The teenager and his friends had previously been asked to leave the mall for similar conduct, where they were seen hanging off the side of the escalator and falling off when they reached a height of five feet or so.
Justice Gordon rejected the plaintiff’s submission that because the escalator was a known area of horseplay, there was a foreseeable risk of harm to the plaintiff and the mall did not take all reasonable steps to protect the plaintiff from that risk. His Honour concluded that the use of the escalator in this manner was clearly inappropriate and ill-advised.
Apart from it being an obvious risk, there was no evidence before the Court to support that the defendants were aware of anyone previously using the escalator in this manner to a height that would jeopardize their safety.
His Honour went on to find that in any event of the foregoing, the plaintiff willing assumed the risk of the manner in which he used the escalator. He had to have known that when the escalator railing reached the top, he would have to let go, which would result in his falling from a considerable height.
Moreover, even if a duty of care was owed by the shopping mall in the circumstances, the expected standard, requiring reasonableness and not perfection, was met. Mall security patrolled the area of the escalators every 15 to 60 minutes.
There was no expert evidence to support the alleged need for an increased security presence at the area of the escalators, or to support the plaintiff’s submission that the mall failed to restrict access to the outside of the railing of the escalator and/or failed to have appropriate warning signs in place.
With respect to the latter, His Honour rather bluntly found that there is no duty to warn of such an obvious and self-evidently dangerous activity as hanging from the railing of a moving escalator to a height at which injury is certain to result.
Although it appears unlikely to have mattered in Lavoie given the nature of the teenage plaintiff’s reckless behaviour, this decision serves as a reminder to parties to put their best foot forward on summary judgment and to put all necessary expert evidence before the motion judge.
Congratulations to Brian Sunohara for achieving this great outcome for our clients!