Kamin v. Kawartha Dairy Ltd., (2006) 207 O.A.C. 199 (CA)

• Judge: Borins, Simmons and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Tuesday December 20, 2005
• Jurisdiction: Ontario
• Citations: (2006), 207 O.A.C. 199 (CA)

Kamin v. Kawartha Dairy Ltd. (2006), 207 O.A.C. 199 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. FE.032

Norma Kamin and Harold Kamin (plaintiff/appellant) v. Kawartha Dairy Limited (defendant/respondent)

(C41643)

Indexed As: Kamin v. Kawartha Dairy Ltd.

Ontario Court of Appeal

Borins, Simmons and Armstrong, JJ.A.

February 8, 2006.

Summary:

The plaintiffs sued the defendant for damages after the female plaintiff fell in the defendant's parking lot. The parties agreed to the amount of damages and the case proceeded to trial on the issue of liability.

The Ontario Superior Court, in a decision reported at [2004] O.T.C. 242, dismissed the action on the basis that neither the female plaintiff, nor her husband, knew the precise location in the parking lot where she fell or how she fell. The female plaintiff appealed.

The Ontario Court of Appeal allowed the appeal, set aside the judgment of the trial judge and granted judgment to the plaintiff for the damages agreed upon at trial.

Torts - Topic 65

Negligence - Causation - Evidence and proof - A trial judge dismissed the plaintiff's claim against the defendant for damages resulting from the plaintiff's fall in the defendant's parking lot on the basis that neither the female plaintiff, nor her husband, knew the precise location in the parking lot where she fell or how she fell - The Ontario Court of Appeal allowed the plaintiff's appeal - The trial judge erred in her causation analysis by setting too high the onus that the plaintiff was required to meet - There might be some cases, where the ability to identify the exact location of a fall would be a significant factor in the causation analysis, but this was not one of them - From the photographs, the parking lot's disrepair was so extensive that it was not surprising that the plaintiff and her husband were unable to point with precision to the location of her fall - There was no evidence of any other probable reason for the plaintiff to have fallen - The probable reasonable cause of the plaintiff's fall was the state of disrepair of the asphalt surface of the defendant's parking lot.

Torts - Topic 3577.3

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Parking lots - [See Torts - Topic 65].

Torts - Topic 3613

Occupiers' liability or negligence for dangerous premises - Negligence of particular occupiers - Parking lots - [See Torts - Topic 65].

Torts - Topic 3708

Occupiers' liability or negligence for dangerous premises - Invitees - Liability of particular occupiers (incl. duty and standard of care) - Parking lot, parking garage, etc. - [See Torts - Topic 65].

Cases Noticed:

Cock v. Windsor, [1944] 2 D.L.R. 778 (Ont. H.C.), refd to. [para. 2].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 4].

Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475 (H.L.), refd to. [para. 4].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 4].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 9].

Counsel:

Alfred M. Kwinter and Jason D. Singer, for the appellant;

Timothy P.D. Bates, for the respondent.

This appeal was heard on December 20, 2005, before Borins, Simmons and Armstrong, JJ.A., of the Ontario Court of Appeal. Borins, J.A., delivered the following decision on February 8, 2006.