Retail Case Update: The Court’s View on Post-Accident Remedial Measures – Are They Determinative of Liability?

It often arises in retail cases that the retailer takes post-accident measures to prevent a similar accident from occurring in the future. The key question then arises, can that remedial step taken post-accident be used to prove negligence?

A leading case on this issue is Sapia v. Invermere, 2018 BCSC 1145 (linked here). In Sapia, the elderly plaintiff was a regular patron at the defendant’s senior’s hall. The injury occurred when the plaintiff left the building and walked towards her vehicle. There was a gradual slope from the hall to the parking lot such that the parking lot at the end of the walkway was lower than the sidewalk by about six inches. The step up from the parking lot was about the same height as the standard curb. Regardless, the plaintiff tripped on the curb and fell.

After the accident, the defendant painted a warning yellow line to demarcate the elevated change on the walkway. The plaintiff argued that such a remedial measure was determinative that such a step was undertaken to comply with the defendant’s duty of care and, had such a step been taken before the fall, the fall would have been prevented in its entirety.

The trial judge found that even when the yellow line was not painted on, there were other obvious signs and markers that would have alerted one to a drop from the sidewalk to the parking lot. For example, the sidewalk and the parking lot were of different colors, and the edge of the sidewalk was apparent by these color differences. The judge also found that the drop from the sidewalk to the parking lot was obvious from looking at the photographs.

The court ultimately concluded that there was no need to mark or paint a yellow line at the edge of the sidewalk to highlight what was apparent for all to see, and that on the day of the fall, the defendants had provided premises that were reasonably safe.  

They key takeaway for our readers is that remedial measures taken after an event are not necessarily determinative that such steps were undertaken to meet the requisite standard of care. In other words, remedial steps taken by a defendant are not to be considered as proof that such steps were required to make the premises reasonably safe.  However, remedial steps are a factor the court may consider. As the court stated in Cahoon v. Wendy’s Restaurant of Canada Inc., 2000 BCSC 629 at paragraph 21:

Steps taken after an accident may well only change an already reasonably safe area to an area which is more than reasonably safe.  On the other hand, steps taken after an accident may well convert an unsafe area to an area which is then reasonably safe.  What is done after the fact is merely a factor to be considered in answering the question of whether the area at the time of the accident was reasonably safe for occupants of the premises.