Graves v. Baxter, (1988) 89 N.S.R.(2d) 19 (TD)

• Judge: Tidman, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 23, 1988
• Jurisdiction: Nova Scotia
• Citations: (1988), 89 N.S.R.(2d) 19 (TD)

Graves v. Baxter (1988), 89 N.S.R.(2d) 19 (TD);

    227 A.P.R. 19

MLB headnote and full text

Charlene Effie Graves (plaintiff) v. Murray Baxter (defendant)

(S.K. No. 2307)

Indexed As: Graves v. Baxter

Nova Scotia Supreme Court

Trial Division

Tidman, J.

September 29, 1988.

Summary:

The plaintiff brought an action against the defendant landlord after she fell through a railing while visiting the landlord's tenant.

The Nova Scotia Supreme Court, Trial Division, dismissed the action and held that the landlord did not breach his duty to the plaintiff as a licencee, where neither he nor the tenant knew the railing was weak and there was nothing to indicate to a reasonable person that it might be.

Torts - Topic 3750

Occupiers' liability for dangerous premises - Licencees - Licencee defined - The Nova Scotia Supreme Court, Trial Division, held that a visitor to a tenant's apartment was a licencee of the landlord - See paragraphs 25 to 32.

Torts - Topic 3754

Occupiers' liability for dangerous premises - Licencees - Standard of care of occupier - General - The Nova Scotia Supreme Court, Trial Division, held that an occupier has a duty to protect a licencee from known concealed dangers and from other concealed dangers, "if he has knowledge of facts from which a reasonable person would either infer the existence of an unusual danger or would regard its existence as so highly probable that his conduct would be predicated on the assumption that it did in fact exist" - See paragraphs 33 to 40.

Torts - Topic 3765

Occupiers' liability for dangerous premises - Licencees - Standard of care of occupier - Apartment building - A visitor to a second storey apartment leaned against a railing of an outside landing and the railing gave way - Neither the tenant, the visitor nor the landlord was aware that the railing was weak - The landlord was conscientious and kept the building in good repair - The Nova Scotia Supreme Court, Trial Division, held that the landlord was not liable to the visitor as a licencee, because he did not know that the railing was weak and did not have knowledge of facts which would lead a reasonable person to infer that it was or could be weak - See paragraphs 41 to 42.

Cases Noticed:

Langille v. Walton (1983), 55 N.S.R.(2d) 713; 114 A.P.R. 713, appld. [para. 26].

Power v. Hughes, [1938] 2 W.W.R. 359; [1938] 4 D.L.R. 136; 53 B.C.L.R. 64 (B.C.C.A.), appld. [para. 27].

Hawkins v. Coulsdon & Purley U.D.C., [1954] 1 All E.R. 97; [1954] 1 Q.B. 319 (C.A.), appld. [para. 28].

Ottawa v. Munroe, [1955] 1 D.L.R. 465 (S.C.C.), appld. [para. 28].

Nohr v. Anderson et al. (1968), 69 D.L.R.(2d) 698 (B.C.S.C.), consd. [para. 28].

Fraser v. Ronsten Developments Ltd. (1969), 4 D.L.R.(3d) 475, consd. [para. 28].

Mantin et al. v. Hamilton (1969), 11 D.L.R.(3d) 453, consd. [para. 28].

Lewis v. Toronto General Trust Corporation & Dawson, [1941] 2 W.W.R. 65, disapprvd. [para. 29].

Greisman v. Gillingham, [1934] S.C.R. 375, dist. [para. 29].

Bartlett v. Weiche Apartments Limited (1974), 7 O.R.(2d) 236 (C.A.), consd. [para. 36].

Authors and Works Noticed:

di Castri, Occupiers' Liability, p. 3 [para. 35].

Linden, Canadian Tort Law (4th Ed. 1988), pp. 599 [para. 25]; 606 [para. 39].

Counsel:

Paul L. Walter, for the plaintiff;

LeRoy M. Lenethen, Q.C., for the defendant.

This case was heard on September 23, 1988, at Kentville, Nova Scotia, before Tidman, J., of the Nova Scotia Supreme Court, Trial Division, who delivered the following oral judgment on September 29, 1988: