Omond v. First Ave. Christian Assembly et al. Date:, 2014 BCPC 316

Citation: Omond v. First Ave. Christian Assembly et al. Date: 20140107 2014 BCPC 0316 File No: C8112 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Civil Division) BETWEEN: ROSE OMOND CLAIMANT AND: BOARD OF EDUCATION, SCHOOL DISTRICT NO. 33 (CHILLIWACK) FIRST AVENUE CHRISTIAN ASSEMBLY DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. M. BOND Appearing in person: R. Omond (Claimant) Appearing for the Defendants: A. Mizrahi (for School District No. 33) T. Unrau (for First Avenue Christian Assembly) Place of Hearing: Chilliwack , B.C.

Date of Hearing: January 7, 2014 Date of Judgment: January 7, 2014 [ 1 ] THE COURT: Ms. Omond claims for damages for her pain and suffering arising from an injury she sustained when she fell

[ 1 ] THE COURT: Ms. Omond claims for damages for her pain and suffering arising from an injury she sustained when she fell exiting the church auditorium where her granddaughter's graduation ceremony was taking place. [ 2 ] Ms. Omond arrived late to the ceremony and was seated in the balcony. Partway through the ceremony, Ms. Omond's daughter-in-law invited her to join her in the lobby to take photographs. Ms. Omond elected to remain seated for a bit longer. When she decided to leave, the ceremony was still continuing. [ 3 ] Ms. Omond testified that girls that were sitting adjacent to her assisted her in getting her to the pony wall at the edge of her

section of three seats and she progressed down the first step. She then paused before taking the second of the two steps and commented on how dark it was. She did not ask for assistance but proceeded, holding onto the pony wall as she went. Ms. Omond says that she air- stepped, and was unable to hold her weight with her arm on the pony wall. She fell to the floor, landing on her buttocks. [ 4 ] Ms. Omond claims against the Church, which owned the property, asserting that they are liable under the Occupiers Liability Act , R.S.B.C. 1996, c. 337 for damages to her.

The Church has third partied the School District which was hosting the event. The Church asserts that the contract for rental of the premises provides that the School District will manage the lighting in the Church during the event. [ 5 ] The parties agreed to proceed only with the liability portion of the trial and to adjourn the damages portion and apportionment of liability between the defendants until after my decision on the liability issue. [ 6 ] The issues are: • What is the duty of care owed by the occupier to Ms.

Omond? • Secondly, was the occupier negligent by failing to provide different lighting or personal assistance to Ms. Omond during the event in question? • Thirdly, if there was negligence, was Ms. Omond contributorily negligent? [ 7 ] With respect to the first issue, the duty of care owed by the occupier to Ms. Omond, the Occupiers Liability Act determines the duty of care owed by an occupier towards persons entering their premises.

Section 3 provides that an occupier must take reasonable care to see that a person will be reasonably safe in using the premises in all of the circumstances. [ 8 ] In these circumstances, Ms. Omond was attending the graduation ceremony of her granddaughter's high school which involved speeches, a presentation of the graduates, and a video or a power point presentation. [ 9 ] As has often been cited, the standard of care is not one of perfection. It is well established in the common law that there needs to be evidence of negligence or a breach of the Occupiers Liability Act for a claim to succeed.

Absent proof of a hazard, the claim will fail. [ 10 ] On the second issue, was the occupier negligent by failing to provide different lighting or personal assistance to Ms. Omond during the event in question, the plaintiff has the onus of proving a breach of the duty of care by one or more of the defendants. Injury alone is not sufficient proof of negligence. Furthermore, it is not up to the Court to speculate as to the cause of the injury. The plaintiff has the burden of proving that it arose from a negligent act. [ 11 ] In this case, no issue was raised as to the construction of the Church premises.

Indeed, the auditorium seemed to be appropriate for the purposes of a graduation ceremony for a large high school. Rather, Ms. Omond complained that the area was unreasonably dark and she was not offered assistance when she chose to leave the area during the ceremony. [ 12 ] There are inconsistencies in the evidence as to the lighting in the balcony area of the Church auditorium. Ms. Omond stated in her evidence that it was dark. She said it was so dark that she could not see her feet or the floor. However, in her pleadings she stated that the area was dimly lit.

The latter is more consistent with the remainder of Ms. Omond's evidence as well as with the other witnesses who were present that evening, all of whom testified that some of the lights were off because there was a video or power point presentation accompanying the graduation ceremony.

They testified, and I accept, that despite the dim lighting, there was sufficient ambient light that one could see across the balcony. [ 13 ] The question remains whether this posed an unreasonable hazard in the circumstances such that the occupier ought to have taken steps to ensure the lighting was not dimmed, or that assistance be provided to anyone wishing to depart in the course of the graduation ceremony. [ 14 ] In this case, Ms. Omond testified that she was led to her seat when she arrived late to the ceremony.

She said that the two steps leading to the area within the balcony in which she was seated were clearly pointed out to her. She was told to be careful of them. She did not have any difficulty navigating the stairs when she arrived and did not suggest that she could not see them. [ 15 ] Ms. Omond declined the offer from her daughter-in-law to accompany her downstairs to the lobby area. She indicated she would follow shortly. It is clear from her decision that Ms. Omond did not anticipate any difficulties in getting herself down from the balcony. Ms.

Omond did not call her daughter-in-law to testify as to whether she (

a) found it unreasonably dark in the area, (

b) had any difficulty navigating the stairs, or (

c) had any concerns about Ms. Omond managing to make her own way down from the balcony in the circumstances. [ 16 ] Ultimately, when Ms. Omond decided to go to the lobby area she said she had no difficulty descending the first stair, however when she approached the second stair she noticed that she could not see either her feet or the stair itself. She paused at the edge of the stair and commented on the darkness. She did not ask for help, but testified that she thought that gentlemen from the audience would come to her assistance. She thought that someone would infer from her comment that she needed help.

No one came forward to assist Ms. Omond and she felt it inappropriate to trouble the women around her for assistance. She pressed on.

[17] Ms. Omond said that she was gripping the pony wall with one hand and holding her purse with the other. She took the step butfell when she could not hold her weight with one arm gripping the pony wall. Ms. Omond refers to this as taking an "air step". [18] I note that Ms. Omond relied on the case of Baker v. York (Regional Municipality), (ON SC), 84 O.R. (3d)279 in which that term is used to describe a step taken when one fully expects the ground to be level. That is not the situation in Ms.Omond's case.

In fact, she said that she stood at the edge of the second step knowing it was there with the intention of stepping down tothe next level. Ms. Omond did not suggest there was anything unusual or hazardous about the step in question. She did not suggest itwas of an unusual height or width, surface, or texture. She did not suggest that the lighting had changed from when she entered the area;rather it appears that Ms. Omond knew exactly what she was facing at the moment in question. [19] Ms. Omond was 81 years of age at the time of the incident.

I must also consider this fact in assessing whether the premiseswere reasonably safe for her. [20] Ms. Omond produced photographs of herself wearing the outfit she was dressed in on the night of June 8th, 2012. I note thatMs. Omond looks and presents as much younger than her now 83 years. [21] On that evening, she was dressed in evening attire, a jacket and knee-length skirt, and was wearing pumps on her feet with athin ankle strap. Ms. Omond did not bring the shoes to Court but insisted the heels were just under two inches high and just under aninch wide at the base of the heel where they meet the floor.

I note that they looked higher and the heels looked narrower in thephotographs she provided. Nonetheless, Ms. Omond described herself as quite capable of managing her way in high heels, even overgravel. [22] All this is to say that Ms. Omond did not present as someone that might have had difficulty with stairs due to the infirmities ofadvanced age. Rather, Ms.

Omond presented as a well-groomed, fit person looking much younger than one might expect of someone intheir eighties. [23] Taking her appearance into consideration, I find that there was no reason for the occupier in these circumstances to take specialmeasures to ensure she was seated in an area away from stairs. [24] In all of the circumstances, it is very difficult to characterize the steps as an unreasonable hazard or danger that would requirethe occupier to take specific precautions as suggested by Ms. Omond.

Indeed, the evidence before me was that no one had previouslyhad difficulty with that step at this or any other event. In fact, Ms. Omond knew the stair was there and had a surface to hang onto incase her balance was off. [25] It seems from the evidence, specifically Ms. Omond's comment that she "air-stepped", that she may have misjudged the heightof the stair even though there was nothing exceptional about it. Other possible explanations were explored by defence counsel on cross-examination of Ms.

Omond such as dizziness, fainting, a weak left ankle due to a prior injury, or shoes with a narrow heel and losing herbalance, but there was nothing about the stair that was hidden or unusual. [26] I also find that it was not unreasonable to dim the lights somewhat for the graduation ceremony. I accept that while it was dim,it was not dark in the area Ms. Omond was seated. She elected to leave the area before the end of the ceremony and did not ask for anyassistance. Although she said she found it dark, she elected to proceed on her own. Ms.

Omond admitted in cross-examination that shethought it was safe to take the step down. I find that Ms. Omond's decision to proceed is more consistent with it being a dimly lit area,rather than being as dark as she alleged. [27] I find that Ms. Omond specifically knew of the stair before her and I find that the dim lighting in the circumstances of thisgraduation ceremony did not pose an objectively unreasonable risk of harm or make the area unreasonably unsafe for Ms. Omond or theother guests.

It did not constitute an unusual danger of which the occupier ought to have been aware absent some hidden hazard or anobviously vulnerable guest which should not have been placed near a stair. [28] I cannot find any negligence on the part of the defendant. In the result, I dismiss Ms. Omond's claim. (ORAL REASONS FOR JUDGMENT CONCLUDED)