Skateboard Safety in Malls

An interesting recent case

One’s personal safety can be affected in many ways at malls – accidentally being run into by people not paying attention, slipping on wet floors and tripping on objects brought into the mall by patrons. Here, we examine a case, called Drummond v. Cadillac Fairview Corp., where a man tripped over a skateboard in the food court and sued the mall-owner for occupier’s liability.

  • First instance[1]

The plaintiff was having something to eat at the food court with his daughter and fiancé. When he went to get a refill of his drink, he tripped over a skateboard in the aisle and injured his knee and lower back. He subsequently went to emergency. The skateboard had been brought into the mall by a 12-year-old boy who was not a party to the litigation. The owner of the mall is Cadillac Fairview Corporation Ltd. The plaintiff sued them for occupier’s liability. The defendant brought a motion for summary judgment and a judgment dismissing the action. Justice P. M. Perell, the motion judge, dismissed the defendant’s motion for summary judgment and instead granted the plaintiff summary judgment, even though the plaintiff had not brought a cross-motion.

Prior to the motion, the plaintiff had been examined for discovery by the defendant. For the motion, the defendant relied on parts of the transcript as well as an affidavit by one of the mall’s security guards. The plaintiff relied on an affidavit by the plaintiff as well as an affidavit and report by a security expert. The expert’s report was excluded, because it was deemed not necessary to assist the trier of fact, but the expert’s affidavit was admitted. Attached to the plaintiff’s affidavit were a hearsay statement by his daughter (that she had told him just prior to the incident that she had seen the skateboarder play with his skateboard in the food court) and a double hearsay statement by his wife (that she had told him just prior to the incident that she had had conversations with two unidentified cleaners that they had seen the skateboarder play with his skateboard in the food court and that one of them had been cut by the skateboard when it escaped and rolled into her ankle). The motion judge admitted all of the hearsay evidence as meeting the common law requirement (i.e. necessary and reliable) and the business records exception.

The motion judge quoted the legal test for whether summary judgment should be granted: whether the court is satisfied that there is no genuine issue requiring a trial.

He also summarized the applicable law of occupier’s liability, which is based on the Occupier’s Liability Act and case law interpreting it: An occupier is someone who is in physical control of premises or who has responsibility and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises. An occupier has a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises and the property brought on the premises by those persons are reasonably safe while on the premises. The Act does not impose strict liability: the presence of a hazard does not in itself lead inevitably to the conclusion that the occupier breached its duty of reasonable care. Occupiers are not required to take unrealistic or impractical precautions against known risks. The measure of what is reasonable depends on the facts of each case including foreseeability, the gravity of the potential harm, the burden of the cost of preventive measures, industry practice, custom and regulatory standards applicable to the circumstances. The duty does not require the occupier to remove every possible danger. The standard of care is one of reasonableness not perfection. To succeed in an action for occupier’s liability, the plaintiff must be able to pinpoint some act or failure to act on the part of the occupier that caused the plaintiff’s injury.

The motion judge noted that Fairview Mall’s Security Department had a reasonable policy in place which prohibited skateboard activity and set forth protocols to help safeguard mall-goers against the dangers caused thereby (for instance, upon seeing someone carrying a skateboard a security guard was required to inform the individual to secure it; upon seeing someone using a skateboard, a security guard was required to approach them to tell them to stop the activity; etc.). The motion judge also acknowledged that the mall was being patrolled at the material time. However, the motion judge found that the policy was not being implemented at the material time: the security guards had not proactively made inquiries with the cleaners who would have informed them that the skateboarder was using playing with his skateboard in the food court and it hit and injured one of the cleaning staff; the security guards had not noticed the skateboarder playing with his skateboard in the food court; the security guards had not noticed the skateboarder in the mall; and the security guards had not informed the skateboarder to secure his skateboard.

The motion judge concluded that the defendant had breached its statutory duty of care and granted the plaintiff summary judgment on this issue, leaving the issue of quantum of damages to be decided by the parties themselves or if they could not settle that issue then by trial.

On the defendant’s appeal, the Ontario Court of Appeal set aside the summary judgment for the plaintiff and made a summary judgment for the defendant, dismissing the action.

The appellate court found two major errors with the decision at first instance which warranted setting it aside:

  1. First, it had granted the plaintiff summary judgment when the plaintiff had not brought a cross-motion for summary judgment – which was procedurally unfair; and
  2. Second, it had impermissibly relied on hearsay evidence.

On the first issue, the court of appeal found it to be problematic that the motion judge granted the plaintiff summary judgment for a number of reasons: the plaintiff’s position at the motion was that it was not an appropriate case for summary judgment and that further evidence needed to be obtained before the case could be fairly and justly decided; the motion judge failed to address the defendant’s defence of contributory negligence; and the motion judge failed to give the defendant notice that he might grant judgment against them so that they could have an opportunity to address that litigation risk.

On the second issue, the motion judge erred in law in concluding that the plaintiff’s hearsay evidence could be admitted under the common law hearsay rule or business records exception. The common law rule requires that hearsay be necessary and reliable – but the plaintiff had not provided in his affidavit a foundation for any of these elements. He had not explained why it was necessary for him to give his daughter and wife’s evidence in hearsay form rather than have them sign their own affidavits, or why the unidentified cleaners could not have been sought to provide direct evidence or at least be identified. There is also case law to the effect that hearsay evidence is unlikely to be admitted on a motion if it is on a foundational aspect of the motion, and the plaintiff’s hearsay evidence went to the heart of his claim.

The court of appeal also granted the defendant’s request for summary judgment. It noted that the motion judge had found that the mall-owner had a reasonable policy in place to guard against the hazards of skateboarding and that the mall was being routinely patrolled by security. The motion judge’s analysis about the lack of implementation of the policy was based on and tainted by the inadmissible hearsay evidence. On the contrary, the court of appeal found that the security guards had implemented the mall’s policy in a routine and reasonable manner on the day in question.

The court of appeal set aside the judgment and dismissed the action.

[1] [2018] O.J. No. 4017 (QL)

[2] [2019] O.J. No. 2802 (QL)