In slip and fall cases, the Plaintiff must produce objective evidence of the presence of a hazard in order to establish a breach of the standard of care by a Defendant. In some cases, a Plaintiff’s own sworn testimony that they slipped or fell on something will be sufficient “objective” evidence that there was a hazard, even if the actual hazard itself cannot be identified.
In Adler v Promenade General Partner Inc., 2021 ONSC 5393, the Plaintiff, Ms. Adler, alleged that she slipped and fell on a sticky substance on the floor of the food court at Promenade Mall. She sued the owner of the mall, the property manager, Centrecorp, and Centrecorp’s cleaning contractor, GDI.
During examination for discovery, in a subsequently sworn affidavit, and during cross-examination on her affidavit, Ms. Adler testified that her foot became stuck in a sticky substance on the floor causing her to fall. She acknowledged that she did not know what the sticky substance was, but affirmed that it was sticky and contended that it may be reasonable to infer that it was food or drink given the proximity of the fall to the food court.
The Defendants brought a motion for summary judgment seeking to dismiss Ms. Adler’s claim on two principal bases. First, they asserted that Ms. Adler’s evidence constituted mere speculation that there must have been something on the floor that caused her fall, rather than objective evidence of the presence of an actual hazardous substance. Second, even if the presence of a hazard was established, the Defendants argued that they did not breach their standard of care because they had in place a reasonable system of inspection and maintenance of the property.
The Court accepted the testimony of Ms. Adler, without any other corroboration, as objective evidence of the presence of a hazard. The Court was careful to distinguish between evidence identifying what the hazard actually was and evidence of the existence of a hazard. In doing so, the Court distinguished the cases of Nandlal v Toronto Transit Commission, 2014 ONSC 4760 and Hamilton v Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467.
In Nandlal, the Plaintiff deposed that she believed that she slipped on debris of floor tiles as she had seen debris in the station the morning of her fall and on previous occasions. However, the Plaintiff did not see the debris. She did not know what caused her fall and simply believed that she must have fallen on something. Similarly, in Hamilton the Plaintiff claimed to have slipped and fallen on a wet floor in the common area of her condominium building, however, she stated on discovery that she did not see anything slippery on the floor. Her position was that there must have been something slippery on the floor that caused her to fall. In both instances, the Court held that the Plaintiff’s testimony merely amounted to a personal belief or “subjective rationalization” of what must have occurred.
In contrast, Ms. Adler’s own observations provided direct, objective evidence of the existence of a sticky substance on the floor that caused her to fall. Ms. Adler did not see the substance and was unable to identify it, but she felt it. As the Court put it:
Her testimony on this issue is admissible, direct evidence that there was a sticky substance on the floor and that her foot stuck to it. Ms. Adler may not be able to pinpoint the substance that was on the floor, but she is able to pinpoint the hazard.
The Court also rejected the Defendants’ second argument that they had a reasonable system of inspection and maintenance in place. The Defendants produced evidence of their system of maintenance including that there were two cleaning staff members from GDI who monitored and cleaned the food court area for their entire shifts, a form outlining the daily cleaning duties of cleaning staff, maintenance logs, and that Promenade’s operations manager would conduct visual inspections of GDI’s work. However, the maintenance logs were lost and there was no schedule for when the visual inspections were to take place.
Based on the record before it, the Court found that the Defendants’ system was “haphazard and lacked structure.” The evidentiary record was not fulsome enough regarding “the defendants’ system of maintenance and any assigned cleaner’s adhere to that system on the occasion in question.” As there was insufficient evidence brought forward by the Defendants on this issue, the Court held that there was a genuine issue requiring a trial as to the reasonableness of the Defendants’ maintenance efforts and refused to use its enhanced fact-finding powers under Rule 20.04 to determine the case on a summary judgment motion.
Plaintiffs have the onus of providing objective evidence of the existence of a hazard. Defendants should determine how strong this evidence is before pursuing a summary judgment motion, keeping in mind that the sworn evidence of the Plaintiff alone as to what caused their fall, rather than their belief as to what must have happened, may be enough to meet this onus.
Defendants should also ensure they put their best evidence forward of both their general inspection and maintenance protocols and the specific adherence to that system on the incident in question. This is important because even if a Court determines that there was a hazard, the following of a reasonable system of inspection and maintenance will lead to a finding that the standard of care was not breached.