Most people are aware that they are supposed to shovel the sidewalk in front of their house after a snowfall. Many people are aware of what time their municipality expects them to do so. The recent decision of Der v. Zhao, 2021 BCCA 82 (CanLII) explored the legal principles related to the obligations of residential owners to clear the sidewalk in front of their houses and what risks are created when a person slips on a sidewalk in front of someone’s house.
In the Der v. Zhao decision, the Plaintiff, Mr. Der, was injured when he slipped on black ice in front of the Defendants’ home. The sidewalk had been cleared, but black ice had formed on a sloped section of the sidewalk allowing for wheelchair access. When Mr. Der stepped on that sloped portion, he did not see the black ice and he fell backwards, striking his head and causing serious injury. The Defendants had cleaned the sidewalk after a snowfall two days earlier including salting the sidewalk in the morning of the accident.
As in most if not all municipalities, the City of Burnaby (where the accident occurred) had a bylaw requiring a property owner to clear a sidewalk of snow and ice by 10 a.m. each morning.
At trial, Mr. Der conceded that whether the Defendants had breached the bylaw did not make them liable to him for using their sidewalk. He also agreed that the Defendants were not occupiers of the sidewalk meaning they could not be held liable further to the Occupiers Liability Act. He also conceded that no duty of care was owed by a residential property owner to clear their sidewalk of snow and ice. Instead, Mr. Der tried to argue a novel duty of care resulting from the Defendants failing in their attempt to clear snow and/or ice prior to the accident thereby created a hazardous, slippery sidewalk that was not visible to a reasonable person in Mr. Der’s circumstances. Put succinctly, he sued for a negligent attempt to clear the sidewalk.
The trial court rejected Mr. Der’s positions finding that “It is not reasonable to interpret an attempt to comply with a bylaw as a voluntary undertaking to the City to maintain the sidewalk and resolve dangers that later form on it.” The trial judge refused to recognize a new duty of care noting that “To agree that homeowners owe no duty to users of the sidewalk to maintain it, but argue that failing to act to the appropriate standard in doing so can create a duty of care, is contrary to basic negligence principles in that it conflates concepts of duty of care with standard of care. It is circular reasoning.”
On appeal, Mr. Der abandoned arguments about a novel duty of care arising from the negligent undertaking of the sidewalk clearly. Instead, he changed his position and argued that there was a duty of care by residential homeowners to clear adjacent municipal sidewalks. Mr. Der contended that the trial judge erred by asking whether a reasonable person in the position of the Defendants would have foreseen that their actions would risk danger.
The Court of Appeal in its analysis first turned to the most basic principles which establish liability, known as the Anns/Cooper analysis. That analysis as cited by the Court is:
- Does a sufficiently analogous precedent exist that definitively found the existence or non-existence of a duty of care in these circumstances;
If not;
- Was the harm suffered by the plaintiff reasonably foreseeable;
If yes;
- Was there a relationship of sufficient proximity between the plaintiff and the defendant such that it would be just to impose a duty of care in these circumstances;
If yes, a prima facie duty arises;
- Are there any residual policy reasons for negating the prima facieduty of care established in question/step 3, aside from any policy considerations that arise naturally out of a consideration of proximity.
If not, then a novel duty of care is found to exist.
Applying these factors, they Court found as follows.
1) Sufficiently Analogous Precedent
The Court reviewed several previous cases and concluded that:
…[A] property owner owes no duty of care at common law to pedestrians to clear adjacent sidewalks of snow and ice. In most of the cases, this conclusion has been reached in circumstances where a municipal bylaw imposed an obligation on the property owner to remove snow or ice.
…
The existence of a bylaw requiring a property owner to clear snow and ice does not impose such a duty; courts have repeatedly held that such bylaws may impose penal consequences for non-compliance but not civil liability to third parties.
…
[I]t is well‑established at common law, through tort and property law principles, that a property owner’s liability for the condition of and activities on his or her property ends at the property boundaries.
2) Foreseeability
The Court had no difficulty finding that the harm suffered by Mr. Der was foreseeable. It a sidewalk is not cleared of snow and ice, someone falling is a clearly foreseeable risk created as a result.
3) Relations of Proximity
The Court noted that there were existing authorities rejected the existence of a duty of care in the same or similar circumstances as Mr. Der which it had to consider. Previous decisions had determined without exception that no proximate relationship exists. The Court noted that a different relationship exists between municipalities and the roads and sidewalks in their ownership and care and the public than exists between residential homeowners, a municipally owned sidewalk and a pedestrian on that sidewalk.
The Court noted that there is a history of courts finding that pedestrians are expected that snow and ice create hazards on sidewalks even when sidewalks are cleared. Such expectations suggest that pedestrians should not rly on adjacent property owners or municipalities to keep sidewalks free from hazards caused by changing winter conditions after a snowfall. It would be unfair for residential property owners to constantly monitor changing weather conditions and check for and clear all hazards which are dynamically created as a result.
Ultimately, the Court was able to find that no duty of care was owed to Mr. Der and, as such, he could not successfully sue because no relationship of proximity existed.
Conclusions
Der v. Zhao is a good reminder to the public that sometimes accidents are just accidents and that, even when foreseeable risk is present and serious injuries have been suffered, there may be no one to sue. Pedestrians must take care to guard their own safety and be aware of risks around them.
Der v. Zhao should not be viewed as asserting that there are no circumstances in which a slip and fall on a sidewalk or elsewhere may result in liability. The Court specifically distinguished municipally owned sidewalks in front of residential property from sidewalks in front of commercial operations where the public is invited to access the business via said sidewalk. The case does not speak to municipally owned and municipally maintained sidewalks or to sidewalks which may be owned and managed as part of the common property of a strata. Lastly, occupiers’ liability can be created as soon as a victim steps off the municipally owned sidewalk onto a residential owner’s walking path or driveway.
In short, pedestrians should take care when walking in the winter. Residential property owners should abide by all obligations to clear municipally owned sidewalks adjacent to their property as required by applicable bylaws but are not responsible to do more by removing all hazards created by dynamically changing weather conditions occurring after snow removal required by bylaws has occurred.