Lysack v. Burrard Motor Inn and Vancouver (City), (1991) 2 B.C.A.C. 216 (CA)

• Judge: McEachern, C.J.B.C., Carrothers and Anderson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: July 23, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 2 B.C.A.C. 216 (CA)

Lysack v. Burrard Motor Inn (1991), 2 B.C.A.C. 216 (CA);

    5 W.A.C. 216

MLB headnote and full text

Edward Russell Lysack (plaintiff/appellant) v. Burrard Motor Inn and City of Vancouver (defendants/respondents)

(No. CA011649)

Indexed As: Lysack v. Burrard Motor Inn and Vancouver (City)

British Columbia Court of Appeal

McEachern, C.J.B.C., Carrothers and Anderson, JJ.A.

July 23, 1991.

Summary:

The plaintiff was injured when he tripped over the seam between the city sidewalk and a concrete decorative area maintained by the defendant Inn. The plaintiff brought an action for damages against the Inn and the city.

The British Columbia Supreme Court dismissed the action. The plaintiff appealed.

The British Columbia Court of Appeal, Carrothers, J.A., dissenting in part, allowed the appeal in part. The court affirmed the dismissal of the action against the city, but found the Inn liable in negligence.

Municipal Law - Topic 1804

Liability of municipalities - Negligence - Standard of care - Maintenance of sidewalks - A city sidewalk was parallel to a concrete "decorative area" maintained by an Inn - A pedestrian tripped over a slight height differential between the two areas - The British Columbia Court of Appeal affirmed that the city was not liable in negligence or under the Occupier's Liability Act - The city had a reasonable yearly inspection and repair program that was properly carried out - At the time of the last inspection the height differential was not sufficient to warrant repair - The differential had increased before the next inspection - The court stated that when the pedestrian fell the city had no duty to repair the height differential, nor did the city breach any duty under the Act.

Torts - Topic 26

Negligence - Standard of care - Knowledge of hazardous condition - A city sidewalk was parallel to a concrete "decorative area" maintained by an Inn - There was a slight height differential between the two areas - A pedestrian walking on the decorative area was diverted to the sidewalk by a concrete planter obstructing pedestrians - The pedestrian tripped - The British Columbia Court of Appeal stated that the Inn was not an "occupier" and was not liable under the Occupier's Liability Act - The Inn was negligent for failing to either remove the planters, fix the height differential or have the city do it - The risk of someone tripping was reasonably foreseeable, where the Inn knew of the problem and that pedestrian traffic was diverted to the sidewalk by the planters.

Torts - Topic 3554

Occupier's liability for dangerous premises - Occupier and premises defined - Respecting sidewalks - [See Municipal Law - Topic 1804 ].

Torts - Topic 3554

Occupier's liability for dangerous premises - Occupier and premises defined - Respecting sidewalks - [See Torts - Topic 26 ].

Cases Noticed:

Butterfield v. Forrester (1809), 11 East 60, refd to. [para. 13].

Jones v. Shafer, [1948] S.C.R. 166, refd to. [para. 15].

Tibbits v. Malloy (1989), 94 A.R. 176; 65 Alta. L.R.(2d) 90 (Q.B.), refd to. [para. 17].

Just v. British Columbia (1990), 103 N.R. 1; 41 B.C.L.R.(2d) 350 (S.C.C.), refd to. [para. 33].

Stein Estate et al. v. Ship "Kathy K" et al., [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 36].

Statutes Noticed:

Occupier's Liability Act, R.S.B.C. 1979, c. 303, sect. 1 [para. 21].

Counsel:

A.P. Czepil, for the appellant;

   J.L. Conkie, for the respondent, Burrard Motor Inn Ltd.;

B.S. Williamson, for the respondent, City of Vancouver.

This appeal was heard on February 25, 1991, at Vancouver, B.C., before McEachern, C.J.B.C., Carrothers and Anderson, JJ.A., of the British Columbia Court of Appeal.

On July 23, 1991, the judgment of the Court of Appeal was delivered and the following opinions were filed:

McEachern, C.J.B.C. (Anderson, J.A., concurring) - see paragraphs 1 to 21.

Carrothers, J.A., dissenting in part - see paragraphs 22 to 47.