Case Summary: Der v Zhao

• Published date: 23 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Law Firm: Field LLP
• Author: Mr Brian Vail, QC

The existence of a municipal bylaw requiring residents to clear sidewalks abutting their property together with the fact that the property owner voluntarily cleared the sidewalk do not create a duty of care towards users of the sidewalk.

Der v Zhao, 2019 BCSC 1996, per MacNaughton, J.

Facts + Issues

The Respondent Der slipped backwards on a sloped part of the municipal sidewalk abutting the residential premises owned by the Applicants Zhao and Huang. The Respondent Der suffered incomplete tetraplegia as a result of the fall and required surgery to fuse his spine.

Zhao and Huang had purchased the premises several months beforehand but did not move in until the day of the Respondent's accident. The sidewalk at issue was relatively flat but sloped down to a wheelchair access ramp at the corner. Zhao claimed to have salted the sidewalks around the premises in the weeks before the accident and to have cleared the snow and ice the day before. He claimed he understood that he was required by the city to clear the sidewalk. On the morning of the accident, Huang claimed to have gone to the premises and salted the sidewalk. She did not remember whether she had salted the area around the wheelchair access ramp.

Der claimed that the snow on the sidewalk appeared to have been cleared. The cleared part of the sidewalk did not appear to be icy.

Der sued Zhao and Huang arguing that they were negligent, including for having breached a City Bylaw which required the owner or occupier of property abutting a municipal sidewalk to clear it of ice and snow by 10:00 AM every day.

An accident reconstruction engineer called by Der gave his opinion that if the sidewalk had been properly shoveled and salted, he would not have expected black ice to be present. He further gave his opinion that shoveling the snow from the sidewalk without salting or sanding afterwards would create a more slippery (and dangerous) surface than if the snow were left in place.

Zhao and Huang applied to sever the issue of liability from damages and to have liability determined by way of a summary trial. By that date, Der abandoned his argument that the property owners were 'occupiers' of the municipal sidewalk within the meaning of the B.C. Liability Act, R.S.B.C. 1996, c. 337. His claim proceeded on the basis of common law negligence based on an argument that the property owners had taken on a duty of care towards him by shoveling and sanding the sidewalk. More particularly, Der argued that a novel duty of...