Recently, the Ontario Superior Court of Justice considered an elevator maintenance contractor’s liability under theOccupiers’ Liability Act in Green v. York Region Condominium Corporation No. 834, a case in which the Plaintiff, Sallie Green, claimed damages for injuries she sustained in an attempt to extricate herself from a stuck elevator in her condominium building. Specifically, Sallie sued the building owner, York Region Condominium Corporation No. 834, as well as the elevator maintenance contractor, ThyssenKrupp Elevator (Canada) Ltd. By the time of trial, Sallie had settled her claim against YRCC No. 834 by way of a Pierringer Agreement, such that the only issue at trial was whether ThyssenKrupp was at all liable for her injuries.

The incident in question occurred on August 20, 2005 when 72-year-old Sallie left her 16th floor apartment, entered an elevator and rode it down to the lobby of the building. Unfortunately for Sallie, the elevator door did not open when she reached the lobby. You see, over the course of the preceding day there was a massive downpour of rain as a result of severe thunderstorms, which caused a number of power failures and extensive flooding throughout the Greater Toronto Area. This flooding extended to the elevator pits in Sallie’s building, which ultimately caused the elevator in which she was travelling to malfunction, trapping her inside.

After waiting for a period of time inside the stuck elevator, Sallie banged on the door in hope that someone would hear her pleas for help and summon assistance. When that failed, Sallie used the emergency telephone inside the elevator and connected with security personnel, who advised her that someone was on the way to take care of the problem. Again, Sallie waited.

Eventually, the elevator door began to open in a “shaking fashion”, but stopped short of fully opening, leaving only a small gap somewhere between 6-18 inches wide. Sensing an opportunity to escape, Sallie, who was described as “diminutive” in stature, turned sideways and began to squeeze through the opening (queue the suspenseful music). As Sallie pushed her way through the opening with her arm and shoulder, the elevator door “jumped” again and sent Sallie flying out onto the lobby floor where she collided with a pillar approximately six feet away. Unfortunately for Sallie, she fractured her shoulder in the process.

In advancing her claim against ThyssenKrupp, Sallie argued that it was liable for her injuries by failing to satisfy the requisite duty of care under the Occupiers’ Liability Act. Specifically, Sallie relied on s. 3 of the Occupiers’ Liability Act, which provides that 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 are reasonably safe while on the premises.

In response, ThyssenKrupp argued that it was called on to act during the course of an exceptional and unforeseeable downpour of rain, which caused elevator shutdowns throughout the GTA amongst many of its customers - in other words, an act of God. ThyssenKrupp argued that in such circumstances, it was not negligent as it diligently sent mechanics to Sallie’s building to perform the requisite repair services in compliance with the applicable standards under the Canadian Standards Association (CSA) B44 Code for Elevators and Other Lifting Devices. ThyssenKrupp further argued that even if s. 3 of the Occupiers’ Liability Act applied, it established a duty of care only rather than a presumption of negligence whenever a person is injured on an occupier’s premises.

In deciding the case, the Court articulated various principles applicable to Occupiers’ Liability Act cases, including the following:

  1. The onus is on the plaintiff to prove, on a balance of probabilities, that the defendant breached the applicable duty of care;
  2. The fact of injury does not create a presumption of negligence under the Occupiers’ Liability Act; and
  3. The plaintiff must point to some act, or failure to act, on the part of the defendant, which resulted in the injury and constituted a breach of the defendant’s positive duty to take reasonable care to ensure the plaintiff was reasonably safe while using the premises.

Appling these principles, the Court was satisfied that the malfunction of the elevators in Sallie’s building on August 20, 2005 was caused by the torrential flooding that occurred over the course of the preceding day and was mindful of the fact that no expert evidence was tendered to identify any breach of duty or negligent act on the part of ThyssenKrupp in response to the malfunctioning elevators. Therefore, the Court was satisfied that ThyssenKrupp took all reasonable steps to respond to the malfunctioning elevators at Sallie’s building by attempting, through its qualified employees, to render the elevators operational over the course of several hours.

In rendering its decision, the Court was also critical of Sallie for how she reacted in the situation. The Court found that although Sallie was stuck in the elevator, she was in a position of safety until she attempted to squeeze through the small opening in the elevator door. Had she not done so, she would not have flown from the elevator, across the lobby floor and into the pillar on which she fractured her shoulder. In such circumstances, the Court found that Sallie was the author of her own misfortune and refused to hold ThyssenKrupp in any way liable for her injuries. Sallie’s action was therefore dismissed with costs.

In the context of defending cases under the Occupiers’ Liability Act, this case reminds us of the importance of establishing compliance with appropriate maintenance standards. This is ideally done through the maintenance of detailed records that are contemporaneous with the date of loss, as without such records, it is often difficult to persuasively establish the adequacy of applicable maintenance standards and whether such standards were being adhered to at the material time.

See Green v. York Region Condominium Corporation No. 834, 2013 ONSC 5004 (CanLII)