A recent Ontario Superior Court of Justice decision that found a Starbucks coffee shop to be liable for an icy sidewalk where its customers had almost exclusive use, puts more onus on businesses in slip-and-fall cases, says Toronto personal injury lawyer Simmy Yu, who along with Murray Tkatch and Barbara K. Opalinski, took the case to trial for their injured client.
In Mackay v Starbucks, 2015 ONSC 4718 (CanLII), the trio at Tkatch & Associates represented a plaintiff who slipped as she stepped off a Starbucks patio onto a Toronto sidewalk.
The evidence at trial was that during the morning hours, many patrons would drive to the side street, park, cross over the sidewalk through the gap in the fence and enter the Starbucks store. They would also exit using the same path.
In arguments on behalf of their client, counsel submitted that Starbucks was not only an occupier under the Occupiers Liability Act of the outdoor patio, but also that it was an occupier of an area of the city sidewalk that Starbucks’ customers used to enter and exit the store.
Yu and her co-counsel successfully argued that using its patio and fence, Starbucks created a pathway that extended in a straight line from its side door, across its exclusive use patio and continued over the city sidewalk. This pathway was built for commercial benefit and used by many of its customers, and only by its customers.
“It’s a huge case for occupier’s liability,” Yu tells AdvocateDaily.com.
Typically, when a person slips and falls on a sidewalk outside of a home or business, the municipality is ultimately responsible, even if the property owner maintains the sidewalk, Yu says.
“This decision puts the onus on business owners in certain circumstances,” she says. “It’s fact specific. But you can’t just say for all situations, ‘This is city property. It’s not my problem.’”
Starbucks has launched an appeal of the decision.
“Counsel for the plaintiff submitted that by building its patio and its fence in the manner that it did, Starbucks effectively directed its customers entering its store through its westerly side door to cross the Hammersmith sidewalk at the point where its fence opened and its patio met the sidewalk,” Justice Maryanne Sanderson wrote in her decision.
Starbucks was the only store in the shopping centre, located south of Queen Street in the Beaches area of Toronto, with direct access to the patio, and Starbucks received commercial benefits from it, Sanderson wrote.
“Starbucks gave its employees shovels and salt and instructed them to clear a pathway a couple of feet wide, wide enough for walking on the patio and on the sidewalk on the first steps off the patio, [where the Starbucks fence opened on to the sidewalk],” the judge wrote. An employee testified, “Our responsibility is to be sure our customers are safe.”
A jury found that the plaintiff had slipped on ice on the sidewalk, that Starbucks had breached its duty as an occupier, but that the plaintiff had been contributorily negligent, or 30 per cent responsible, for her own damages.
Yu says Starbucks was firm from the onset of proceedings that the sidewalk was not their responsibility, prompting the case to go to trial.
The judge didn’t accept the coffee company’s arguments.
“The sidewalk was right outside the patio, and they would know customers have to walk on it in order to get to the sidewalk. You can’t jump off the patio to get to the street,” Yu says. “It’s your business, you’re making money from people coming in and out. They’re carrying hot coffee. It’s your responsibility.”
This article was originally published on Advocate Daily on May 10, 2016.
