Skip to content

Narrow screen resolution Wide screen resolution Auto adjust screen size Increase font size Decrease font size Default font size default color brick color green color
CAFCOR Forum
_GEN_GOTOBOTTOM Post Reply
TOPIC:
#18946
"WATCH YOUR STEP": a cautionary tale about SUING for condo ELEVATOR INJURY - LEBKO v various 2019/03/14 21:44  
This is not legal advice, nor should litigating a condo elevator injury be casually considered, as this again shows. There are other elevator topics for governance-oriented folks at Directors Forum. . .

Lebko v thyssenkrupp, T.S.C.C. # 1862, DEL & G4S issued March 12/19

At 6 pm on April 4 2011, 64 year old female plaintiff Ms LEBKO in sandals trips & is injured while exiting one of 4 elevators at her daughter co-plaintiff's 29 storey condo corp. It's southwest of Etobicoke’s Six Points mega - intersection.

Subject 4 year old elevator is one of FOUR in 339 unit 2007 Nuvo at Essex 1. Given the number of units one would expect substantial suppertime demand to get it working again for suppertime travel.

The injuries occur 75 minutes after arguably “NO SURVEY FIELDNOTES” type of scenario / virtually un-detailed but almost full day presence of a thyssenkrupp ( sic ) techie summoned about the subject elevator ‘s reported mis-levelling.

Ms Lebko's injuries occur just an hour BEFORE another mis-levelling report about that same elevator. Such then triggers an ( immediate ) further shutdown ( by security ) of that same elevator ( and more servicing next day ).

P-1 lobby camera records Ms LEBKO tripping; she suffers broken wrist & dislocated shoulder.

She is hospitalized later that evening. Witness to her actual injury confirms mis-levelling by quarter to half inch – not particularly noticeable but arguably not rare, court hears. ( Maybe it's not much, but arguably enough to be missed by a senior, especially if the four year old elevators had previously been known functioning reliably. )

Co-plaintiff daughter reports incident to PMC condo management company DEL next day.

But servicer thyssenkrupp ( sic ) appears caught neither eventually reporting the incident to TSSA nor able / willing ? to later disgorge any techie-generated list of whatever was even done to the elevator during the full day servicing finished 75 minutes immediately before Ms LEBKO's injuries. Serviced & left. Maybe never knew about Ms Lebko's injuries until long afterwards.

Critically, amidst these shutdowns had it been prudent at all for thyssenkrupp (sic) to put that elevator back into evening service only 75 minutes before Ms Lebko’s (alleged ) injuries ? What actually was the state of that elevator's safety ? What had been done ?

If the unit was fit to be returned to service by thyssenkrupp ( sic) 's techie 75 minutes earlier, how does one reasonably now view Ms Lebko's incident ? AND FURTHER how does one view the further security-reported mis-levelling an hour AFTER her incident ?

That's arguably a very central issue one could argue requiring more than upfront summary dismissal. Anyway . . . .

EIGHT YEARS & a single hearing later . . .

Ms Lebko’s claim as against elevator servicer thyssenkrupp (sic ), is summarily dismissed under Rule 20 RCP civil procedure rules upfront ( without formal trial ) as plaintiff shortfall of meeting burden of proof that the independent maintainer was in ( contract-derived ) default of Duty of CARE to keep safe. ( general duty is section 3 of OLA Occupiers’ Liability Act RSO 1990 ch O.2 http://canlii.ca/t/52snz ).

That’s despite a contemporaneous witness to the mis-levelling malfunction, another mis-levelling shutdown of that elevator an hour later, and an arguable breakdown in incident reporting to TSSA which could ( ? ) subsequently have looked closer. Does TSSA really protect with thousands of elevators being mass-serviced ?

The plaintiffs with counsel also brought to court an elevator technical expert. Must have cost big-time.

1- Critically about that elevator being allowed back into service & despite absence of detailed “techie fieldnotes”, the independent elevator service contractor thyssenkrupp ( sic )is now held summarily to have - on balance of probabilities - NOT AT ALL been shown in breach of duty of care. The victims bear that burden of proof even if unable to penetrate missing factuals.


2 - And demonstrating a REASONABLE SYSTEM ( for elevator incident-reporting & servicings ), effectively means both condo corp & PMC can be shielded from Occupier Duty of Care by OLA’s section 6 competent “Independent Contractor ” defence.

So all the other co-defendants' motions to dismiss also get accepted as having been part of “ in place a reasonable system to meet the statutory and regulatory duties to keep the premises reasonably safe for visitors. The standard is reasonableness in all the circumstances.” - Madam Justice Carole J. Brown 2011 Federal appointee

BOTTOM LINE :

Injury claimant(s) are here held unable to meet burden of proof nor breach the shield of reasonability of safety systems. Mere injury or loss in itself does NOT create any presumption of negligence – St Louis-Lalonde 2005 etc.

Treated here as leading condo decision St.Louis –Lalonde (2005) reminds that the Occupiers’ Duty of Care under s 3 OLA is not guarantorship of safety, only reasonable efforts to keep safe. Competent independent contractor doing reasonably necessary work, shields general owners & governancers shown with a “reasonable system” for response.

Barring appeal, it's been a long, expensive-looking, vain struggle over this unfortunate lady's broken wrist & dislocated shoulder. Should she have even tried ?

( Footnote : In paragraphs 4 and 7, this judgment describes Ms LEBKO's shared ownership address, as somehow being "owned" by T.S.C.C. # 1862. The current Condominium Act 1998 S.O. 1998 c.19 however continues that the shared ownership common element real property is technically NOT "owned" such as by TSCC #1862. But actually in section 11 "Ownership of Property" that it's "owned" as an undivided tenancy-in-common of the unit owners themselves in the proportions expressed within the Declaration package. This is more easily familiar to those of us in Building Scheme communities whose shared tenancy-in-common common lands happily may have zero governance body with vires )


More elevator topics : http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&catid=2&id=17813#17813


Lebko v thyssenkrupp Elevator Canada, TSCC 1862, DEL and G4S 2019 ONSC 1602 issued March 12/19 http://canlii.ca/t/hxzgb
  The administrator has disabled public write access.
_GEN_GOTOTOP Post Reply
contact webmaster