Tibbits v. Molloy, (1989) 94 A.R. 176 (QB)

• Judge: Medhurst, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 03, 1989
• Citations: (1989), 94 A.R. 176 (QB)

Tibbits v. Molloy (1989), 94 A.R. 176 (QB)

MLB headnote and full text

Ester K. Tibbits (plaintiff) v. Albert E. Molloy and Ann G. Molloy (defendants)

(No. 8701-00930)

Indexed As: Tibbits v. Molloy

Alberta Court of Queen's Bench

Judicial District of Calgary

Medhurst, J.

February 3, 1989.

Summary:

A 69 year old woman brought an action in nuisance and negligence for damages. While working on their driveway, the defendants' parked their truck across the sidewalk, forcing pedestrians to detour onto the street. The plaintiff stepped onto the street in front of the truck, slipped on small stones that were lying in the street and damaged her right arm on the truck's bumper.

The Alberta Court of Queen's Bench allowed the action in part. The court held that the act of obstructing the sidewalk and forcing pedestrians to walk on the street presented the public with an unnecessary increase in the risk of danger. However, the court also found that the plaintiff was contributorily negligent in failing to take proper care when walking on the street and apportioned liability equally.

Damage Awards - Topic 24

Injury and death - Arm and hand injuries - General - The plaintiff 69 year old woman slipped and struck her arm - Fracture required internal fixation - Extreme pain and discomfort - 25% permanent partial disability - Also, the injury reduced her ability to look after her home and her elderly husband - The Alberta Court of Queen's Bench assessed $20,000.00 general damages - See paragraph 23.

Torts - Topic 82

Negligence - Duty of care - Risk created by tortfeasor - A 69 year old woman sued for injuries caused when she slipped and fell while walking around the defendants' truck, which blocked the sidewalk and forced pedestrians to detour onto the street - The Alberta Court of Queen's Bench held that the defendants' conduct constituted negligence and held the defendants liable for the plaintiff's injuries - See paragraphs 11 to 15 - However, the court also found that the plaintiff had failed to exercise the proper level of care and held her contributorily negligent and 50% responsible for her injuries - See paragraphs 16, 17.

Torts - Topic 1263

Nuisance - Particular nuisances - Blocking of sidewalk - The defendants' truck was parked in the front of their driveway and obstructed the sidewalk - The plaintiff 69 year old female pedestrian was forced to detour onto the street where she slipped on small stones and fell - The Alberta Court of Queen's Bench held that the defendants' conduct constituted an actionable nuisance - By blocking the sidewalk, the defendants forced pedestrians onto the street thereby unnecessarily increasing their risk of danger - See paragraphs 9, 10.

Torts - Topic 6601

Defences - Contributory negligence - General - What constitutes contributory negligence - A 69 year old female pedestrian sustained injuries when she slipped on gravel lying on the street - The defendants' truck obstructed the sidewalk and she was forced to detour around the truck by stepping onto the street - The Alberta Court of Queen's Bench found the pedestrian contributorily negligent and equally liable for her injuries because of her failure to exercise the proper level of care or pay attention to the condition of the street - See paragraphs 16, 17.

Cases Noticed:

Anns v. London Borough of Merton, [1978] A.C. 728, folld. [para. 11].

Donoghue v. Stevenson, [1932] A.C. 562, refd to. [para. 11].

Edgar v. Canadian Imperial Bank of Commerce (1977), 6 A.R. 104, refd to. [para. 13].

Statutes Noticed:

Contributory Negligence Act, R.S.A. 1980, c. C-23, sect. 1 [para. 17].

Highway Traffic Act, R.S.A. 1980, c. H-7, generally [para. 10].

Authors and Works Noticed:

Salmond and Houston, Law of Torts (19th Ed.), p. 61 [para. 9].

Counsel:

J.P. Stopa, for the plaintiff;

D.J. Corry, for the defendants.

This action was heard before Medhurst, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on February 3, 1989.