Store Owner found liable when a Customer was Injured in his Store

Posted by Injury Lawyers of Ontario on January 10, 2017

Business and store owners are obligated to keep anyone coming onto their premises reasonably safe, under the Occupiers’ Liability Act of Ontario.  If anyone is hurt on a property due to an unsafe condition, such as a wet floor or debris that was not promptly cleaned up, then the business owner/occupier may be liable for any injuries that result.  In determining premises liability, the courts assess whether the property owner had a reasonable strategy in place for inspecting and fixing hazards and also, whether reasonable steps were taken to construct and maintain a safe premises. 

Vykysaly v. Jablowski is a civil action that arose after a woman fell through a trapdoor into an open stairwell at the back of a downtown Toronto store, while she was shopping with her adult daughter.  The injured woman was in her 50’s at the time of the fall, and she suffered soft tissue injuries to her lower back, neck, right knee and shoulder joints.  Medical opinion presented at the trial indicated that she would likely have permanent residual pain in her lower back that would probably restrict her ability to engage in physical activities she previously enjoyed. 

The store where the accident occurred is one in which people tend to shop for bargains and where various goods, such as clothing, towels and dry goods, reach from the floor to the ceiling and little attention is paid to décor.  In fact, the store is actually located in two adjacent buildings.  The trapdoor was located in an area of the store used for storage, but there were no signs or anything else to indicate that the area was only reserved for staff or to prevent the public from accessing the area.  There were also no signs warning of the open stairwell.  Therefore, it was not surprising that the woman and her daughter wandered into the back of the store where they believed more goods were available for sale, and indeed, there was merchandise on shelves in this area. 

Immediately prior to the accident, the store owner saw the plaintiff and her daughter and suggested that they move out of the storage area, but he testified that the plaintiff then moved into a narrow area to get close to some merchandise, when she fell into the stairwell  The defendant did not take any steps to warn the plaintiff, but he testified that the accident happened too quickly to allow anyone to take measures to prevent it.  The defendant storeowner also testified that normally, when the store is open, the trap door is placed down and therefore presents to danger to anyone.

The judge in this case found the store owner negligent under the Occupiers’ Liability Act, for failing to warn the public of the stairwell and also for failing to protect against falling into the stairwell. The trial judge stated that an open stairwell of the type that was in the defendant’s store is unusual for a premises open to the public, and it was incumbent upon the storeowner to take steps to prevent someone from falling into the stairwell.  It was suggested that a prudent owner would have taken the following steps to keep people safe: 1) ensure that the trap door was always securely closed while the store was open for business; 2) install a banister or guard rail around the open portion of the stairwell; and 3) provide adequate signage to warn unsuspecting customers of the open stairwell.

The defendant storeowner was found 90 per cent liable for the plaintiff’s injuries.  The injured woman was found 10 per cent liable in her injuries for failing to walk without attention and due care, particularly as the area was well lit. 

If you were injured due to an unsafe condition on a property and are claiming damages for your injury, call a knowledgeable Toronto premises liability lawyer to learn about your legal right to compensation.  Assessment of damages generally depends on the severity of your injuries.  You may be eligible for loss of income during your recovery, rehabilitation expenses such as physiotherapy or chiropractic, pain and suffering, and other losses associated with your injury.  Schedule a no-obligation consultation to discuss the facts of your case, and get an honest opinion on the strength of your claim and your best options going forward.


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