In the case of Dubuc v. Victoriaville (City of), the plaintiff Dubuc sued the City of Victoriaville, claiming the sum of $175,068 for damages sustained from a fall.
In June 2006, during a windy and rainy afternoon, the plaintiff was walking downtown and fell after having set foot on a slope created by the existence of a strip of paving stones located between the sidewalk and street. This strip was composed of semicircular stones, where there previously were tree pits that had since been partially filled with concrete after the trees had been removed. However, at the site of the plaintiff’s fall, only the hole of the pit had been filled with cement while the paving stones, aged and uneven, had been left in place.
The Superior Court had to decide if the depression of about two inches between the sidewalk and the paving stones of the strip was a trap, as described in the leading case in this matter, Rubis v. Gray Rocks Inn Ltd. ( 1 S.C.R. 452). The Court concluded that the city had done nothing wrong and, most importantly, the depression was visible and was not a trap.
In fact, the Court held that the premises were not "an inherently dangerous situation," given that the line was well apparent between the two surfaces. There was not, as is usually the case for a trap, "a connotation of abnormality and surprise, given all of the circumstances."
The Court also considered the fact that, when the plaintiff had put her foot on the slope, she had glanced up for a few seconds to look towards a bank where she was going, while changing direction suddenly at the last moment. The plaintiff also admitted that if she had kept looking in front of herself on the sidewalk, she would have seen the depression. The Court therefore concluded that the fall sustained by the plaintiff resulted only from her own carelessness.
It is also interesting to note that the Court analyzed several other rulings by both the Superior Court and the Court of Quebec in similar situations, and found that the courts had mostly concluded that the unfilled holes of old tree pits on a sidewalk of two to six inches deep were not a trap, barring special circumstances. The Court added that a depression on a sidewalk between two and four inches is not a trap.
Although the Court rejected the plaintiff's action, it said that it would have granted the sum of $50,000 for her non-pecuniary damages arising from a fractured foot and meniscus tears in her knee, which left a permanent partial disability of 10%.
The Court also confirmed that the theory of predisposition of the victim ("Thin Skull Rule") would have been applicable if the city had been liable. Even if the plaintiff suffered from osteoarthritis asymptomatic before the incident, it had the effect of triggering painful symptoms in the plaintiff. In short, there was a causal connection between the incident and the ongoing pain caused to the plaintiff.
This decision is interesting for cities and municipalities, as well as any private company or owner who has under its care, the maintenance and responsibility of sidewalks, where pedestrians walk, which often have cracks and depressions.