Alchimowicz v. Schram

Alchimowicz v. Schram Collection Decisions of the Court of Appeal Date 1999-01-18 Docket numbers C26437 Judges Austin, Allan McNiece; Charron, Louise Vivianne; Moldaver, Michael James Subject Civil Decision Content DATE: 19990118 DOCKET: C26437 COURT OF APPEAL FOR ONTARIO AUSTIN, CHARRON and MOLDAVER JJ.A. BETWEEN: ) ) Harvey T. Strosberg, Q.C. and DEREK ALCHIMOWICZ ) Patricia A. Speight, ) or the appellant Plaintiff ) (Appellant) ) Robert A. Calder, for the ) respondent Michael MacIntyre and ) ) Earl A. Cherniak and ROBERT SCHRAM, MONICA ADE, ) Sandra Coleman, for the DANIEL PAGLIARELLA, MONIQUE ) Corporation of the City of TOUSIGNANT, LUCA VISENTIN, JOSE ) Windsor PERLA, MARIA BLANCA LEONE, also ) known as MARIA BLANCA VARELA, ) Robin B. Cumine, for the MICHAEL MACINTYRE, THE ) respondent Daniel Pagliarella CORPORATION OF THE CITY OF ) WINDSOR, MICHAEL KENNY, FRANK ) Bert Raphael, for the TEDESCO and TEDESCO RESTAURANTS ) respondent Robert Schram LTD., operating as FRANCO'S ) RESTAURANT ) Eric Sigurdson, for the ) respondent Monique Tousignant Defendants ) (Respondents) ) Gregory W. Wade, for the ) respondent Luca Visentin ) ) Heard: January 11 and 12, ) 1999 ) BY THE COURT: [1] Very early one summer morning in 1992, the appellant, while grossly intoxicated, dived from the railing of a dock into shallow water and was rendered a quadriplegic. He brought an action in negligence for the damages he sustained against a number of individual defendants and the Corporation of the City of Windsor ("Windsor"). The individual defendants were all co- workers or former co-workers of the appellant who had some involvement with him during the evening of the tragic accident. Windsor owned and operated Sand Point Beach park where the dock was located. After a month long trial on the issue of liability, the trial judge found that the appellant's negligence was the sole cause of his injuries and dismissed the action. [2] The appellant appeals against the dismissal of his action, claiming a 75% contribution against the individual respondents and Windsor. It is beyond controversy that the appellant's actions constituted negligence. At issue on this appeal is whether the trial judge erred in finding that the appellant was the sole author of his misfortune. [3] We did not call upon any of the individual respondents to respond to the appellant's argument on the appeal. In our view, the trial judge was correct in finding that the evidence did not support the factual basis of the appellant's argument in support of liability with respect to any of the individual respondents. [4] We do not find it necessary to deal with each individual separately. It is implicit and clear from the trial judge's reasons that he found that the appellant's actions were beyond the scope of reasonable foreseeability on the part of any of the respondents. This finding, which is well supported by the evidence and with which we agree, is sufficient, in and of itself, to defeat the appellant's claim against the individual respondents. In light of the lack of foreseeability of the risk, it is not necessary for us to determine what duty, if any, may have arisen from the relationship between any of the respondents and the appellant, or what standard of care was expected of them in the particular circumstances of this case. [5] The trial judge was also correct in dismissing the appellant's claim against Windsor. [6] It is common ground between the parties that Windsor, as occupier, had the duty to make the premises reasonably safe for its users. The appellant advanced three theories of liability at trial. He focussed on one of them on the appeal. [7] First, the appellant argued at trial that the length of the dock, the buoy lines, the pilons and the railing created an impression of deep water and constituted an invitation to the prudent or the imprudent to dive from the railing or the dock. The trial judge rejected this argument. Instead, he found that these factors were indicators not to dive. He noted in particular that the dock was not located within the swimming area and that the 37 inch railing which enclosed the dock on three sides was an obvious indication that this was not a swimming dock. He concluded that if this was not a swimming dock, then obviously the railing could not be considered a diving platform. His conclusion was reinforced by the historical evidence that he accepted showing that children up to 15 years of age occasionally jumped off the dock, but that no one had been seen diving off the railing. [8] The trial judge's findings as they relate to this argument are well supported by the evidence. Based on these facts, we agree with his conclusion that the appellant's first theory of liability is not made out. [9] Second, the appellant argued that if "No Diving" signs had been prominently erected, the potential danger would have been disclosed both to the appellant and to the persons who were with him who could have alerted him to the danger. The trial judge also rejected this argument. There were signs erected prohibiting the use of the park between midnight and 5:00 a.m.; the appellant paid no attention to them. The appellant was told not to go in the water and not to jump by some of the respondents; he did not heed the advice. The trial judge accepted expert evidence that "No Diving" signs would not benefit a person as intoxicated as the appellant. The trial judge concluded that he had considerable doubt on the evidence that a sign would have been effective. [10] In our view, the trial judge's conclusion on this point is unassailable on the record before him. It is clear from the appellant's own evidence that he was familiar with Sand Point Beach as he had been swimming there several times before. He had also been on the dock in the day time. He was a trained lifeguard and was aware of the danger of swimming at night, particularly in a state of intoxication, and the risk involved in diving without first checking the depth of the water. He agreed that he never would have dived from the dock had he been sober. It is clear that a "No Diving" sign would not have increased the appellant's knowledge of the risk he ran. The danger of diving from the dock was also evident to all the individual respondents. There is no duty to warn of a danger which is so obvious and apparent that anyone would be aware of it. [11] Lastly, the appellant argued that Windsor should have installed a railing that was not flat on the top so as to make it more difficult for someone to stand on it and dive from the dock. Evidence was adduced that, for example, a round configuration would make it "almost impossible" for someone to stand on it, thereby reducing the risk of diving. The appellant focussed on this argument on appeal, arguing that the trial judge failed to deal with this "theory" of liability in his reasons. [12] We do not consider this argument as a separate theory of liability. Rather, the configuration of the railing was but one factor to be considered in all the circumstances. It was not incumbent on the trial judge to deal with every aspect of the evidence in his reasons. In any event, the trial judge expressly considered the railing in his reasons on the first argument and rejected any argument that the dock, including the railing, constituted an invitation to dive. Hence, there is no basis to the appellant's argument that the trial judge failed to consider this evidence. [13] In any event, we see no merit in the appellant's argument that Windsor was negligent in failing to install a railing that was not flat. In fulfilling its duty as an occupier, it was not incumbent upon Windsor to guard against every possible accident that might occur. Windsor was only required to exercise care against dangers that were sufficiently probable to be included in the category of contingencies normally to be foreseen: Wade v. Canadian National Railway Co (1978), 80 D.L.R. 214 (S.C.C.) at 231. In our view, an adult diving off the dock at night into shallow water was not one of these contingencies. To exact a standard as suggested by the appellant would effectively make Windsor an insurer against all possible risks. The law imposes no such duty. [14] Finally, we are not persuaded on the evidence that a round railing, any more than a "no diving" sign would have been an effective deterrent to the appellant. [15] The consequences of this accident are indeed tragic. However, the evidence in support of the trial judge's conclusion that the appellant is the sole author of his own misfortune is overwhelming. There is no reason for this court to interfere. [16] The appeal is dismissed. There is no reason why costs should not follow the event, other than the possible impecuniosity of the appellant. The costs of the appeal are awarded to the respondents if requested.