By: Camille M. Dunbar, Litigation Associate
A stout, upholstered chair may, at first blush, seem innocuous. It’s easy to ignore the warnings often recited by parents and teachers to sit property when rocking back and forth on a chair’s legs. However, in Nerland v. Toronto-Dominion Bank, the British Columbia Supreme Court reminded us why the old adage dies hard.
In Nerland, the 61-year-old plaintiff took a seat on a chair at a sit-down wicket at a branch of the Toronto-Dominion Bank (TD). While a bank employee went off to complete the plaintiff’s transaction, the plaintiff leaned forward to pick up some documents on the counter and the chair went out from under him. He fell to the floor, striking his head, neck, shoulder and elbow, suffering injuries. [show_more more=”Show More” less=”Show Less” color=”000000″ align=”center”]
The parties agreed on damages and the trial proceeded on liability only. The chair at issue was upholstered with wooden legs affixed with hard plastic tips. The floor around the sit down wicket was tiled. The plaintiff argued that he did not tilt the chair deliberately, but could not recall how the chair toppled. There was no incident report or security video of the incident. After the fall, the plaintiff claimed the branch manager suggested there had been a prior incident and the bank had meant to put a mat down in that area. He also testified that when he returned to the branch a few weeks later, the chair had been placed on a mat.
TD retained an engineering expert to opine on the mechanics of the fall, particularly, the degree to which the chair could be tipped forward before it lost stability. Relying on the expert evidence, the Court found that the plaintiff was seated in the front half of the chair and deliberately tipped the chair onto its front legs to reach the documents on the wicket counter.
After dismissing the plaintiff’s claim under British Columbia Occupiers Liability Act, the Court assessed the negligence claim. The plaintiff submitted that tipping the chair onto its front legs was normal, foreseeable human conduct, and injury is likely to occur only where the tipped chair slips out from beneath a person due to the plastic tips on the tiled floor.
However, the Court found that the chair tipped over because the plaintiff intentionally raised the back legs over eight inches off the floor, which required a conscious effort. Furthermore, the Court was not persuaded that the bank manager made any comment regarding prior incidents or the intention to place a mat in the area. As a result, the Court concluded that, although TD owed the plaintiff a duty of care, there was no breach of this duty in the circumstances:
The chair provided to the plaintiff to sit on at the sit down wicket was reasonably safe to sit on. I found no evidence of any prior or subsequent incidents with similar chairs. The placement of a mat under the chair at the sit down wicket at some point after the plaintiff fell was not an admission of liability and I do not find it a persuasive factor. I find the plaintiff exerted the effort required to tip the chair forward onto its two front legs to such a degree that it toppled out from under him. His action in tipping the chair forward caused the fall, not the plastic chair glides.
The Court noted that the plaintiff could have waited for the bank employee to return and hand him the documents or he could have stood up to reach across the desk for them. To prevent customers from tipping chairs forward (or indeed backwards), the Court commented, TD would either have to fix the feet of the chairs permanently to the floor or appoint an employee to closely monitor the activities of customers while seated in chairs.
As the manufacturer and retailer were not named in this decision, it is not, strictly speaking, a products liability case. However, the decision does consider the question of foreseeable misuse of a product, finding that it was the plaintiff’s own intentional acts that created the danger and caused the chair to fall, not the chair itself or the plastic tips.
This decision also confirms that although TD Bank owed the plaintiff, its customer, a duty of care, the standard is reasonableness, not the elimination of every possible danger. Furthermore, remedial steps taken by a defendant, like placing the impugned chair on a mat in this case, is not necessarily proof that such steps were required to make the premises reasonably safe. Lastly, and perhaps most practically important, it reminds us to heed the advice we often heard at a young age, “sit properly in that chair or you’re going to hurt yourself”! Unfortunately for the plaintiff in this case, he was left to bear full responsibility for his injuries sustained in the fall.
 2016 BCSC 45 [“Nerland”].
 R.S.B.C. 1996, c. 337 [the “Act”] (finding that the chair was chattel and therefore outside the scope of the Act).
 Nerland, supra note 1, at paras. 75-76.
 Ibid at para. 67.
Camille M. Dunbar is an associate at Theall Group LLP and maintains a broad civil/commercial litigation practice. Prior to joining Theall Group LLP, Camille summered and articled at the Toronto office of a prominent national business law firm, gaining commercial litigation experience in class proceedings, injunctions, franchise disputes, professional liability, employment law, municipal liability and negligence/product liability. Camille graduated from Osgoode Hall Law School in 2013 and was called to the Ontario Bar in 2014.
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