What liability does a condo corporation have if someone is trapped in one of its elevators? This was recently considered by the Ontario Superior Court where a condominium resident sued both the condominium corporation and the elevator maintenance company for damages incurred as a result of being trapped in the elevator.
A thunderstorm with record rain levels resulted in power failures and flooding of the elevator pits at the bottom of the condominium elevator shafts. After the elevator stopped at the ground level, the doors did not open to allow the resident to leave. The resident claimed that after a while, the door partially opened and as she was trying to squeeze out, the elevator suddenly lurched and caused her to be tossed onto the lobby floor and hit a pillar, which resulted in a fractured shoulder.
The resident sued both the condominium corporation and the elevator maintenance company for failing to exercise a duty of care as an occupier under the Occupier’s Liability Act. An “occupier” is defined in the legislation as including “(a) a person who is in physical possession of premises; or (b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to the premises …” An occupier’s duty of care under the legislation is as follows: “An occupier of premises owes 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 Judge determined that the elevator maintenance company was an independent contractor in the employ of the occupier, which was the condominium corporation. Although the condominium corporation was an occupier of the premises, the Court noted that Section 3 of the Occupier’s Liability Act “does not create a presumption of negligence against the occupier of the premises whenever a person is injured on the premises. The plaintiff must still be able to point to some act, or some failure to act, on the part of the occupier which caused the injury complained of before liability can be established. Accordingly, the plaintiff must establish, on a balance of probabilities, a causal link between the alleged of the standard of care and the alleged injuries.”
The Court went on to set out the principles applicable in occupier liability cases:
- “the onus is on the plaintiff to prove, on a balance of probabilities, that the defendant breached the duty of care;
- the fact of injury does not create a presumption of negligence;
- the plaintiff must point to some act or failure to act on the part of the defendant which resulted in the injury, this act or failure to act being a breach of the defendant’s positive duties to take reasonable care to ensure the plaintiff was reasonably safe while using the premises.”
The Court found that the resident’s evidence was vague and uncertain in a number of respects and that she would not have fallen through the door and injured herself had she not attempted to push herself out through the gap in the elevator doorway. The elevator itself was considered by the Judge to be a place of safety with access to a telephone.
The Judge was satisfied that the malfunction of the elevators occurred because of the flooding that occurred due to the rain and that the elevator maintenance company took all reasonable steps to respond to the service calls. No evidence was presented to indicate that the elevator maintenance company breached a duty of care or was negligent in response to the malfunctioning elevators.
At the end of the day, the Court determined that the condominium corporation and the elevator maintenance company were not liable for her injuries, but rather, the resident was the author of her own misfortune.