In a recent Ontario case, the court dismissed a case against the owner of a parking garage and the company in charge of its security after a man was assaulted on the premises.
Plaintiff Assaulted in Parking Garage
The City of Brantford operates a three level parking garage in downtown Brantford. At the time, a security company had been contracted to provide on-site security for employees, members of the public and for the building.
On February 24, 2012, the plaintiff, who had a parking spot in the parking garage, finished work and walked back to the parkade where he had parked his car. After he entered the parking garage, he was physically assaulted by two individuals. The plaintiff was able to escape and sought help from a security guard. The police were called, but the perpetrators were never apprehended.
The plaintiff had to undergo surgery to his nose as a result of the assault.
The plaintiff brought an action against the City and the security company for the damages he suffered due to their negligence in failing to take proper security measures to keep a parking garage safe for customers. He claimed, among other things, that the parkade was dirty and unkempt. He stated that generally the stairwells were covered with broken liquor bottles, drug paraphernalia including needles, and human waste. He said he had encountered people who were drunk. While he acknowledged that he was aware there were security staff in the parkade, he could not recall seeing them there.
The defendants did not dispute the fact that the plaintiff had been injured in the assault. However, they argued that they were not legally responsible for what took place as it was not due to any neglect on their part to provide proper security and, even if there was such neglect, it was not the cause of the plaintiff’s damages.
The damages were settled before trial. Therefore, the issue before the court was whether the defendants owed the plaintiff a duty of care and whether they had breached that duty.
Court Dismisses Plaintiff’s Claim for Lack of Causation
The court began by explaining that as owner of the property, the City was an occupier as defined in the Occupiers Liability Act. Section 3 of the Act reads:
3(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
(2) The duty of care in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried out on the premises.
While the security company was not an “occupier” within the meaning of the Act, the court held that both defendants had assumed responsibility to see that persons entering into the parkade were reasonably safe while on the premises. In so doing, there was sufficient proximity to the members of the public who use the parkade, including the plaintiff, to require the defendants to be mindful of the plaintiff’s interests.
The court therefore held that both the City and the security company had a duty of care to the plaintiff and other users of the parkade.
The court then turned to examine whether the defendants had breached their duty of care.
The court was critical of the conditions of the parking garage and the measures taken by the defendants to ensure the safety of its users. It found that they had failed to take reasonable care to carefully consider and recommend and implement reasonable measures to make the stairwells of the parkade safe for lawful users and had failed to meet the standard of care to mitigate the foreseeable risk created by potential torts of a third party. The court further stated:
“I find as a fact that loitering was a significant problem in and around the parkade and both defendants were aware of that…. Homeless people used the parkade from time to time to escape the elements…. [T]he parkade was a regular concern on almost a weekly basis to the police.”
As a result, the court found that the City and the security company had both breached their duty of care to the plaintiff and other users of the parkade, concluding: “A defendant’s conduct is negligent if it creates an unreasonable risk of harm.”
Additionally, the court held that it was reasonably foreseeable that the defendants’ breach of their duty of care might cause injury or loss.
However, the plaintiff’s claim failed on the issue of causation. In determining whether the defendants’ breach caused the plaintiff’s loss, the court found that:
“[E]ven if all the proper steps to fulfill their duty of care had been done by the defendants, this incident could not have been prevented. … [E]ven if the video cameras were installed with a central monitoring system, it is very unlikely that the security guards could have responded in a timely way to prevent [the plaintiff] suffering his injuries…
The failure of the City to conduct a threat/risk assessment was a violation of the mandatory provisions of the Occupational Health and Safety Act but it does not create a cause of action in the plaintiff. The same conclusion applies to the failure of [the security company] to conduct or recommend such an assessment. There is no private tort remedy for the breach of a statutory duty.”
As a result, the plaintiff’s claim was dismissed.
Being the victim of a physical or sexual assault is a traumatic and devastating experience for anyone, and this is magnified in situations where the victim suffers lasting or permanent physical or psychological damage. We understand that seeking help in such situations is in and of itself a difficult step, and our skilled and caring personal injury lawyers will work with you each step of the way to ensure that you are protected, well-informed and that you obtain the maximum compensation to which you are entitled.
Please contact us today to arrange a no-obligation consultation with our caring and experienced personal injury lawyers. To reach a member of our firm, you can call us at 519-886-1204 or contact us online. We will work to maximize your compensation while shielding you from unnecessary additional stress following a traumatic event. We offer prospective personal injury clients a free initial consultation.