In Massaroni v. Yum! Brands Inc., 2021 ONSC 5460, the court dismissed the plaintiff’s action in a matter involving an occupiers’ liability claim.
The plaintiff was walking from a parking lot of a KFC store to a TD Bank. There was a barrier separating two properties. The barrier was comprised of a curb and a two foot concrete retaining wall.
The plaintiff provided conflicting evidence on how the accident occurred. On discovery, she said that she slipped on the curb. In her evidence for the motion, she said that she slipped on pebbles on the retaining wall.
Justice Black noted that it is important to use common sense when applying the Occupiers’ Liability Act. A fall does not create a presumption of negligence. Further, there is no duty to warn of something that is plainly visible and that the plaintiff knows exists.
Justice Black rejected the argument that the barrier invited pedestrians to cross over it. There was no path or pattern of pedestrian traffic. There was no evidence of prior or subsequent accidents involving the barrier.
The plaintiff argued that the defendants were negligent in failing to remove pebbles and debris from the top of the curb or the retaining wall. Justice Black indicated that there was no such duty. If there were pebbles or debris on top of the curb or retaining wall, this would in no way interfere with the suitability of the barrier to prevent vehicles from crossing one property to the other.
Even if there was such a duty, the evidence did not demonstrate that there were any pebbles or debris on top of the curb or the retaining wall at the time of the accident.
Therefore, the defendants’ summary judgment motion was granted and the action was dismissed.