A recent case offers some insight into the standard expected of condominiums and others when it comes to injuries related to malfunctioning elevators in condos.
The claim was brought by a unit owner and her mother against the condominium, manager, security/concierge, and elevator servicing company. The plaintiffs alleged that the mother was visiting her daughter when she fell while exiting one of the elevators due to mislevelling of the elevator. The mother apparently sustained a broken left wrist and dislocation of her right shoulder. She sought damages of $2 million. The daughter claimed $200,000 for loss of care, companionship and guidance due to her mother’s fall.
The defendants all brought summary judgment motions asserting that there was no genuine issues for trial.
The judge reviewed the law on elevator maintenance obligations. While the Occupier’s Liability Act requires condominiums (like other occupiers of property) to take reasonable steps to ensure that persons entering on the property (and their belongings) are reasonably safe while on the premises, the plaintiff must still be able to pinpoint some act or failure on the part of the condominium before the court will find the condominium liable. There is not a presumption of negligence. There is no strict liability. The plaintiff must also establish a link between the injuries suffered and the negligence of the condominium. In making these determinations the court will look at the applicable law (in this case regulations made under the Technical Standards and Safety Act 2000) and the evidence presented.
Where the legislation stipulates a specific standard of care to be followed and the condominium complies with it, the plaintiff bears a “heavy onus” to prove negligence by the defendant. Where the condominium put a “reasonable system” in place, the court must consider whether the reasonable system was being followed at the material time. This will usually be inferred unless there is some evidence to the contrary.
The Decision & Reasons
The judge found in favour of the defendants and granted their summary judgment motions as there was no genuine issue for trial.
The condominium and manager had in place a reasonable system to meet their duties and keep the property reasonably safe for visitors. There was a monthly preventative maintenance contract with the elevator servicing company. They retained the security/concierge on a 24/7 basis to inspect the property, including the general functioning of the elevators. The elevator was checked at regular intervals throughout the day. It was taken out of service for two days due to a levelling issue and remained out of service until the elevator technician put it back into service. It was inspected less than two hours prior to the incident. The condominium and manager were not qualified to work on the elevator and determine whether it was safe to be put into service. Only the elevator serving company could do that. The judge concluded:
There were no additional reasonable steps which should have been taken to ensure that the premises were safe for visitors.
While sympathetic to the injuries suffered by the plaintiff, the judge was not satisfied that there was a failure to discharge their duty of care in the circumstances. There was no evidence to suggest that the security/concierge or elevator servicing company were negligent in their duties. The mere fact of an injury does not render the occupier liable.
Condominiums should ensure they put in place reasonable systems to ensure the property is properly maintained and repaired. The system will depend upon the property, but should generally include a review of any applicable legislation or requirements, regular inspections, and preventative maintenance. Contracts should be reviewed to ensure only qualified persons are working on the components. If superintendents, or other employees, are going to be working on components they may require additional training or designations before they complete certain tasks. Finally, keeping adequate records of all inspections, maintenance work, contracts, and other relevant documents is key to successfully defending a claim of negligence.