Trial Summary: Taylor v. Allard et al.
Plaintiff Counsel: Darcy Romaine
Defence Counsel: Jack Armstrong
This trial, and appeal, were primarily fought over the issue of liability. On July 29, 1995, the plaintiff, Lorne Taylor, was an uninvited guest at a backyard party. Mr. Taylor had been drinking for a good part of the day, and arrived at the party late in the evening in a drunken state. Shortly after attending, while Mr. Taylor was standing in the back yard, he took a step backwards, caught his foot on the cinderblock perimeter in a large, deep, bonfire pit, and fell into it. Acquaintances took Mr. Taylor to the hospital for treatment of his 3rd degree burns, covering 14% of his body, primarily his left shoulder, arm and hand.
We first met with Mr. Taylor in 2004, before discoveries. The claim had long since been issued. The claim named the homeowner and tenant of the property where Mr. Taylor believed he had fallen; he could not corroborate the location of his fall. He recalled falling backwards into the fire, that the pit was deep, that he could not roll out of it, that he had landed on a cage-spring mattress used for fuel, and he believed the crescent shaped burn-mark on his shoulder blade was caused by the hot spring mattress.
The defendants were a homeowner, Bobby Allen, and a rental tenant, Joyce Allen. At discovery, they acknowledged having had a gathering on the night Mr. Taylor was injured, but denied that Mr. Taylor was at their party. They said there were other parties in the neighborhood and believed Mr. Taylor must have fallen elsewhere. They provided us with witness statements of their guests confirming Mr. Taylor had not been in their property that evening and they provided us with numerous photographs of their backyard, which depicted a circular place for a fire, flush with the ground, rather than deep as Mr. Taylor had claimed. They could not offer much in the way of dimensions. They also advised us that their property had been sold to the Province of Ontario for the Highway 404-extension project, that the home had been razed to the ground, and they presumed the fire site had been cleared as well.
Several days following discovery, we drove to the property myself. The home had been torn down, the grass had grown waist high, but we did locate the fire pit. We obtained permission from Ontario to excavate its property, and hired a former Ontario Fire Marshall to do so. The Fire Marshall’s perimeter search revealed a cage spring mattress that had been exposed to flame. His excavation of ¼ the pit revealed that the fire pit descended several feet to a brick base, a thick layer of ash, covered over by a thin layer of sand, and overlaid with a thin layer of ash. He retrieved a number of objects like beer cans in the ash layer. He also found a 6”x6”x6” wood block that matched the wood block in the photos given to us by the homeowner. It was burned on top, but not the lower 1” suggesting that it had been partially submerged in the sand when the photos were taken. This established continuity from 1995 to present.
We made an offer to settle of $130,000 + costs; the defendant’s made an offer of $50,000 all inclusive. The matter proceeded to trial over 6 days. The defendants’ strategy at trial was to emphasize Mr. Taylor’s drunkenness; for the impecunious tenant to accept responsibility to protect the homeowner via a verbal agreement that all maintenance obligations were born by the tenant, and for the homeowner to seek costs.
At trial, Marchand J. assessed damages at $265,000. He found the cinderblock perimeter around a large, deep, fire pit from which a person could not escape unaided constituted a tripping hazard. He found Mr. Taylor 50% at fault for his contribution due to drunkenness, and the tenant 50% at fault for the condition of the property. He found no liability against the homeowner on the basis that the homeowner owed no duty of care to the plaintiff because of his verbal rental agreement with the tenant that put all responsibility for maintenance onto the tenant. After contributory negligence was deducted, the award was $132,500 + interest + costs, which exceeded the plaintiff’s offer to settle. The homeowner, being absolved, moved for costs, but we were successful in bringing a motion for a Sanderson Order to have the costs of the homeowner paid by the tenant.
We then appealed the decision of Marchand J. on the basis that he had erred in finding the homeowner owed no duty of care to the plaintiff. Goudge J.A., on behalf of a unanimous Court of Appeal accepted our argument that the homeowner was an occupier, according to his un-withdrawn admission in his Statement of Defence, and that he statutorily owed a duty of care by virtue of the Occupier’s Liability Act. The court went on to consider our second argument, and agreed that the interplay between the Occupier’s Liability Act and section 94 (1) and 80 (1) of the Landlord and Tenant Act is such that a landlord cannot contract out of his/her statutory duty to keep a rented premises in a good state of repair. We believe this to be a new point of law.
The Court went on to conclude that the landlord breached his duty of care, and the Court re-assessed liability as 50% for Mr. Taylor, 25% for Ms. Allen (tenant) and 25% for Mr. Allen (homeowner).