Motta v Clark, 2016 ABQB 211

Court of Queen ’ s Bench of Alberta Citation: Motta v Clark, 2016 ABQB 211 Date: 20160413 Docket: 1301 09342 Registry: Calgary Between: Joe Francisco Motta and Her Majesty The Queen In Right of Alberta Plaintiffs - and - Ronald Clark and Mavis Clark Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] The plaintiff Mr. Motta and the male defendant, Mr. Clark were good friends. Mr. Clark had invited Mr. Motta to come to the Clarks’ house on the upcoming Saturday to celebrate Mr.

Clark’s birthday. However, on Friday night Mr. Clark texted Mr. Motta to say the party would not be happening on Saturday but invited Mr. Motta to come to the Clarks’ garage and socialize that night instead. [ 2 ] Mr. Clark had five beers in his garage before Mr. Motta got there. Mr. Motta had 6 beers at his home before he walked to a strip mall nearby, picked up a case of beer and walked over to the Clarks’ garage at the Clarks’ home. This amount of beer drinking was

not unusual to either of the men. Neither says the beer affected him, and neither says the other was intoxicated. Given that evidence Iattribute no causal relation between the beer drinking and the events that later occurred. [3] Mr. Motta had visited Mr. Clark in his garage on many occasions to drink beer and socialize. When any of the participantsneeded to urinate, they did so in the backyard. Hence there was usually no need for anyone to enter the house. [4] However, on this occasion after Mr. Motta had arrived and had a beer, he felt in need of a bowel movement.

He asked Mr.Clark if he could use a bathroom in the house. Mr. Clark, at the time was on the phone listening to birthday congratulations from afriend. He interrupted his call to tell Mr. Motta he was welcome to enter the house and use a bathroom, and he suggested using theupstairs bathroom. [5] About one week before these events, Mr. Clark had noted that the light outside the back door to the house was acting up.There were two bulbs attached to a motion detector device, but the device was not working correctly and the light was staying on in theday time. Mr.

Clark didn’t like the wasted electricity, and so he had commenced the practice of turning off that outside light fixture byuse of the switch inside the back door. Indeed, when Mr. Motta approached the back door the switch to the outside light was off, and sothe light did not come on to illuminate either the outside, or the inside landing. There were no lights on inside the house. [6] Mr. Motta opened the screen door, then opened the back door which swung inwards and to his right.

He could not see insidethe house or on the landing. [7] He took a step into the house, then reached his right hand across his body to feel for the light switch on the wall to the left ofthe doorway. He swiped his hand up and down as he reached in but could not feel the light switch. He felt a box on the wall, whichproved on later inspection, to be a box for keys that was above the light switch for which he was searching. [8] Mr.

Motta says that he then stepped further into the house and to his left with his right foot. [9] Where he went to put his foot down there was no landing; the stairwell to the basement was immediately left of the entrancethrough which he had entered. Mr.

Motta fell down the stairs in the dark and injured his wrist and arms in the fall. [10] The set up of the inside landing was such that, as one entered through the doorway from the outside, there was a strip to theleft of the doorway approximately 4 inches wide, then the landing dropped off to the first stair, the stairwell being a left turn fromentering the landing. Mr. Motta could not see this in the dark. [11] There is some confusion or discrepancies in the evidence as to what happened next. [12] Mr.

Motta says he crawled back up the stairs to the landing, then sat on the landing and used his telephone to call Mr. Clark inthe garage, to tell him he had fallen and was injured. [13] He says Mr. Clark and two of his guests came into the house and took him up into the kitchen and sat him on a chair. He stillhad to go to the bathroom and so he did so. When he came out Mrs. Clark had arrived. She and Mr. Clark helped him pull up and do uphis pants. [14] Mr. Clark acknowledges receiving the phone call. He says his wife had already arrived home and was with him and his guestsin the garage. [15] Mrs.

Clark says she came home and noticed both back doors were open. She looked in the house and called out, but got noresponse. She saw a shoe and a lighter on the stairs to the basement. She went to the garage to ask her husband what was going on. Herhusband told her Mr. Motta went to go to the bathroom. Then Mr. Motta telephoned and they all went into the house. When they gotthere, Mr. Clark says Mr.

Motta was on the top kitchen step and had apparently already gone to the bathroom because they got him upand pulled up and zipped up his pants. [16] Counsel have pointed out the differences in testimony as raising questions as to the witnesses’ credibility. To my mind, thesedifferences are attributed to vagueness of memory and do not indicate any intention to mislead. [17] The parties have agreed upon what damages were sustained by Mr. Motta. They came to court for a determination of liability. [18] The Clarks’ are clearly occupiers under the Occupier’s Liability Act. Mr.

Motta was a visitor, invited to attend the Clarks’garage and was invited, or permitted to attend inside their home. [19] The Occupier’s Liability Act provides: S.5 An occupier of premises owes a duty to every visitor on the occupier’s premises to take such care as in all the circumstances ofthe case is reasonable to see the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited orpermitted by the occupier to be there or is permitted by law to be there. [20] Counsel for the defence argues, that before a duty of an occupier arises, it must be reasonably foreseeable that a visitorexercising ordinary diligence would be subject to a risk.

Counsel refers to Wood v Ward, 2009 ABCA 329, para 8, referencing Lorenz vEd-Mon Developments Ltd (1991) 1991 ABCA 82 , 118 A.R. 201 (Alta C.A.). [21] That premise is not stated in

Section 5 of the Occupier’s Liability Act. However, to the extent that this is a necessaryprecondition to liability, the requirement of foreseeability is met here. It was reasonably foreseeable to an occupier of these premises thata visitor entering the house by the back door in the dark, exercising ordinary diligence, might still risk falling down the basement stairs. [22] Therefore I find that the Clarks owed a duty to Mr. Motta to take care that Mr. Motta would be reasonably safe in using thepremises for the permitted purpose of going to the bathroom.

[ 23 ] I am further satisfied that the Clarks breached this duty. [ 24 ] Mr. Clark invited Mr. Motta to his garage. Mr. Clark then gave specific permission to Mr. Motta to enter the house to use a bathroom. [ 25 ] To Mr. Clark’s knowledge there were no lights on in the house. Mr. Clark had switched off the outside lights. Therefore Mr. Motta entered the house in the dark. [ 26 ] Mr. Clark could have turned the lights on in anticipation that the house would be used; Mr. Clark could have turned on the outside lights. Either would have rendered Mr. Motta reasonably safe. Having failed to do either, Mr.

Clark should have made the house reasonably safe before Mr. Motta entered. This he could easily have done by accompanying Mr. Motta and turning on a light. [ 27 ] The Clarks say that there was a light switch inside the house which Mr. Motta should have used and they were entitled to rely upon him acting reasonably by switching it on. I would agree with that proposition, except that, with the lights off, Mr.

Motta could not see the light switch, and so was feeling for it in the dark. [ 28 ] The light switch was on the wall to the left of the doorway, some 14 inches away from the door opening, thereby requiring a bit of a reach to get to it. It was 40.5 inches above the height of the landing, which (the expert MacInnes tells us) was an acceptable or convenient enough location to pass code requirements, but was at the low end of the height range that was acceptable or usual.

Further, the placement of the light switch was not on a wall over the landing but instead was on the wall over the stairs. [ 29 ] So, while the switch placement complied with code, it was not easily accessible above the landing and in the dark its location could be missed. [ 30 ] That is coupled with the fact that the stairwell was only 4 inches to the left of the door opening. Again there is no failure to meet the building code. But such a design increased the risk of one falling down the stairs, if he took one misstep to the left. [ 31 ] Counsel for the defendant argued that as Mr.

Clark only foresaw his guests using the garage, it is not reasonable for the court to require him to have lights on in the house. If that is true, it is true only up to the time that Mr. Clark granted permission to Mr. Motta to enter the house and use the bathroom. Upon Mr. Motta’s request to use the house, the duty arose upon the Clarks as occupiers to take reasonable care that Mr. Motta would be reasonably safe: such reasonable care would include providing lighting to guide him in using the house. [ 32 ] But what about Mr. Motta?

He acknowledges he had used the back entrance on at least two prior occasions, albeit in the daylight. He acknowledges he knew there was a stairway to the basement inside the back door, off the landing. [ 33 ] When Mr. Motta was inside the house, on the landing, knowing of the stairs and was not able to locate the light switch, prudence would dictate that he should assess his options. We know he had his telephone on his person because he used it after his fall to call Mr. Clark.

The telephone had a flashlight feature that he could have used; or just turning the cell phone on would have illuminated the screen, which illumination he could have used to find the light switch. Mr. Motta didn’t think of this. [ 34 ] Mr. Motta was a smoker and used a lighter. Indeed Mrs. Clark says she saw a lighter on the stairs. Mr. Motta could have fished his lighter out of his pocket and illuminated the wall to find the light switch. Mr. Motta didn’t think of this. [ 35 ] Mr. Motta could have retreated and returned to the garage seeking help from Mr. Clark. Mr.

Motta didn’t think of this. [ 36 ] Instead, Mr. Motta continued on, taking a step into the dark, not knowing what he might encounter. [ 37 ] It is not an answer to

an act of negligence to say I didn’t think of alternatives. Mr. Motta is required to be prudent and care for his own safety. I find that Mr. Motta’s actions are contributarily negligent, contributing to his fall and to his injuries. [ 38 ] An analysis of comparative blameworthiness is required. I find that the Clarks’ failure to fulfill their positive ability to make their premises reasonably safe for use by Mr. Motta, is more blameworthy than is Mr. Motta’s ill advised step in the dark. [ 39 ] I fix the Clarks’ responsibility for damage at 2/3’s and fix Mr.

Motta’s contributory negligence as 1/3. [ 40 ] The parties may speak to me regarding costs. Heard on the 4 th , 5 th and 6 th days of April, 2016. Dated at the City of Calgary, Alberta this 13 th day of April, 2016.

R.J. Hall J.C.Q.B.A. Appearances: Jane S. Lang for the Plaintiffs Robert J. Black for the Defendants