An injured co-owner: the Court held that the syndicate is not responsible

Published on by Me Kevin J. Lebeau

Topic(s): Condo

An injured co-owner: the Court held that the syndicate is not responsible

In a recent decision of the Superior Court¹, the Court had to judge whether bodily injury to a co-owner of the building committed the liability of the syndicate of the condominium because of its duty to properly maintain the common portions of the building.

The decision, which includes fourteen pages, deals in detail with the medical evidence of the co-owner, as well as with the counter-proof of the syndicate. However, we will only analyze the Court’s reasoning in relation to the question of whether the syndicate’s liability could be incurred or not.

Summary of the facts retained by the Court

The plaintiff co-owner claims to have suffered injuries due to a fall in the lobby of the elevator of the building at the level of the parking garage inside the building. The facts in evidence demonstrate that the co-owner has fallen due to the presence of a spill of olive oil on the concrete floor of the vestibule. The co-owner went to her condo after her shift as a medical doctor and after doing her grocery shopping. She complains that the syndicate had breached its duty to ensure, so she believes, that the floor of the hallway would be clean and safe at all times.

For its part, the syndicate submits that this is an unfortunate accidental event, but not a fault on the part of the syndicate.

On the morning of the accident, the co-owner went through the same hallway to reach the garage of the building and her car to get to work. According to her, at that time there was nothing wrong, and the floor was then clean and dry.

Upon her return to the building around 1 p.m. on the same day, she followed the same path to reach the elevator at the garage level, but this time around she suddenly slipped on a spill of olive oil on the floor of the hallway in front of the elevator. She got injured at her ankle and hip.

The law applicable according to the Court

In its analysis, the Court notes that Section 1077 of the Civil Code of Quebec imposes liability on the syndicate for the harm caused to others, among others due to a lack of maintenance of the common portions of the building. However, the Court notes that this section does not have the consequence of creating a presumption of liability for the syndicate. The co-owner must therefore prove that the syndicate had been negligent in the maintenance of the hallway floor, and that the injuries caused to the co-owner are a direct consequence of this neglect.

The Court stipulates, however, that the syndicate cannot be held rigorously to the highest standard of perfection, but must rather take reasonable action. It also recalled that, as in this case, the time lag between the occurrence of a dangerous situation and the measures taken by the manager of the premises is crucial to determine if he is responsible for the accident.

The syndicate admits that the oil spill could be described as a trap in the sense as defined by case law, that is to say: 1) that it was an inherently dangerous situation; 2) difficult to detect; 3) the occurrence of which is anomalous in the sense that it took by surprise. The Court states that the facts of the case precisely meet these criteria. The Syndicate confirms that without knowledge of the fall of the co-owner, one of the directors slipped on the same spill of oil around 8 p.m. on the same day. The administrator confirms that the oil spill was indeed difficult to detect.

But the Court specifies however that there must be negligence on the part of the syndicate for it to be held accountable. The co-owner testifies that, until the day of the accident, she was satisfied with the condition of the building and its maintenance and cleanliness, and that there was nothing unusual about the floor when she had left the building on the morning of the accident. There is a maintenance firm that is retained by the syndicate and which does the cleaning of the building two days a week, i.e. on Mondays and Thursdays.

However, the accident occurred on a Sunday, when the maintenance company was not present. In addition, there is no evidence as to when the oil was spilled on the floor, or who did it, and no one brought this situation to the attention of the syndicate before the fall of the co-owner.

The co-owner accuses the syndicate for not having set up a video surveillance system of the premises and for not hiring a superintendent or a security guard twenty-four hours a day to make regular inspection tours.

The Court did not accept this argument, because the co-owner had not shown that such measures could have prevented her fall, because there is no evidence that a superintendent or guardian would have noticed the oil spill. Moreover, a video surveillance system would be effective only if a person hired by the syndicate would have had the duty or task to watch the screens at any time of the day.

The Court reminds that the syndicate would be remiss only when it would be in default of the rules of conduct imposed upon it by the circumstances, usage or law. In the circumstances, the Court is of the opinion that the security measures demanded by the co-owner would be exorbitant for the syndicate which only has thirty-eight residential units. So, the syndicate has no obligation to prevent any possible incidents, but it has a duty to act with prudence and diligence, which it did according to the Court.

Consequently, the Court rejected the claim for damages by the co-owner from the syndicate, which amounted to several hundred thousands of dollars.

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