



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Rozenboom 
          v. MacGregor,







2006 
          BCCA 21



Date: 20060113





Docket: CA031754

Between:

Gerrit 
    Johan Rozenboom

Appellant

(
Plaintiff
)

And

Ralph 
    MacGregor, Gail Dorman, Gerry Bergen

and 
    Lee Brine, doing business as Willow Park

Respondents

(
Defendants
)












Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Mr. Justice Donald




The 
          Honourable Mr. Justice Hall



Oral Reasons for Judgment




A. 
          de Turberville


Counsel for the Appellant




M.F. 
          OMeara


Counsel for the Respondents




Place 
          and Date:


Vancouver, British Columbia




13 January 2006





[1]

FINCH, C.J.B.C.
:  The plaintiff appeals a judgment of the 
    B.C. Supreme Court pronounced 24 February 2004 dismissing his claim for damages 
    for injuries and loss alleged to have been suffered in a slip and fall accident 
    on 21 December 1998.

[2]

At that time the plaintiff and his wife lived at 1050 Morrell Place, 
    a cul-de-sac, in Willow Park, a trailer park in the City of Nanaimo.  The 
    park was privately owned by the defendants.  There had been a significant 
    snowfall on the night of 20-21 December.  On the afternoon of 21 December 
    at about 2 p.m. and before the snow had been cleared from Morell Place, the 
    plaintiff walked from his home to a common mailbox site about four lots away.  
    On his way back from the mailbox to his home he slipped, fell and suffered 
    serious injuries.  The plaintiff sued the owners of the park claiming that 
    they were liable as occupiers for failure to take reasonable care to see that 
    persons, including residents of the park, were reasonably safe in using the 
    parks premises.  Specifically the plaintiff claimed that the defendants were 
    negligent in the following respects:

·

Failing to clear snow 
    and ice from Morell Place in a timely way;

·

Failing to warn the 
    plaintiff the road was slippery;

·

Failing to salt or 
    sand the roadway before the snowfall;

·

In constructing a 
    roadway with inadequate drainage so that ice could form on its surface.

[3]

The learned trial judge did not accept any of those allegations.  As 
    to the timeliness of snow clearing on Morell Place, the trial judge said in 
    part:

[11] 
    The accident occurred at about 2:00 p.m. in the afternoon of December 21, 
    1998.  Morrell Place had not yet been cleared of snow and ice.  After a snowfall, 
    Morrell Place was usually, if not always, the last street in Willow Park to 
    be cleared.

[12] 
    That Morrell Place was cleared of snow last was a source of irritation to 
    the plaintiff, and one of his ongoing complaints.  But I am of the opinion 
    that it was not negligent of the defendants to have Morrell Place cleared 
    last.  It is obvious that whatever the order of snow clearing, one part of 
    the park must be cleared last.  Morrell Place is at the far end of the roadway 
    system within the park.  It is logical that the roadways would be cleared 
    from the entrance inwards.  The order of snow clearing left the park managers 
    street cleared last, just as it did the plaintiffs.  The park manager could 
    have had the operators of the snow clearing machines change the order of clearing 
    to clear his street before others.  He did not do so.  The plaintiff considered 
    that the order of snow clearing was unfair.  But, in my opinion, it was probably 
    the most sensible order of clearing, and certainly not negligent.

[4]

As to the alleged failure to salt and sand prior to the snowfall, the 
    trial judge said:

[21]  
    The storm left a layer of ice on the road surfaces of Willow Park covered 
    by a snowfall of about 13 cm. to 16 cm.  The roads were icy and difficult 
    to clear.  The roads could not be salted or sanded after the storm until the 
    snow was cleared.  The clearing and sanding was done in difficult conditions.  
    It was done with a large machine that had been designated for that work.  
    In my opinion, the defendants were not negligent in respect of the speed in 
    which Willow Park was cleared of snow and sanded, and not negligent as to 
    how it was done.  The plaintiffs complaints relate to incidental details.  
    However, in my opinion, the work was done effectively and within a reasonable 
    period of time.  Furthermore, it is a matter of speculation as to whether 
    Morrell Place could have been cleared and sanded by 2:00 p.m., even if the 
    defendants had had a second machine available to them.

[22]  
    I am satisfied that the manner and speed in which the defendants cleared and 
    sanded the streets of Willow Park following this storm was reasonable.





[27]  
    The plaintiff submits that the defendants ought to have put salt on the roadway 
    before the snowfall, and that that would have prevented ice from forming in 
    the first place.

[28]  
    However, the opinion of Mr. Tim Leggett, an accident reconstruction engineer 
    who has particular expertise in the area of winter road maintenance, is that 
    pre-salting of roads is a technique that is not widely used.  It is effective 
    only in conditions of moisture, and there had not been precipitation for some 
    days before this storm.  Pre-salting was not a technique used by the City 
    of Nanaimo in 1998.  Furthermore, it was a snowfall that had been predicted.  
    There is no evidence that the defendants ought to have known that there was 
    a particular risk of ice forming on Morrell Place.

[5]

With respect to the allegation that the defendants failed to warn the 
    plaintiff of the slippery condition of the road, the trial judge said:

[26]  
    In my opinion, there was no duty or obligation on the part of the defendants 
    to telephone or visit all the residents to warn them that the roads were icy.  
    The defendants duty was to clear the roads of snow and ice within a reasonable 
    time, which is what they did.  The plaintiff could have waited until the streets 
    were cleared and sanded before he left his residence.  The plaintiff decided 
    to leave his residence and walk on the roadway before it was cleared and de-iced.  
    Icy roads are a common phenomenon after storms.  It ought to have been obvious 
    to the plaintiff that the roadway could be slippery.  The plaintiff had shovelled 
    his own driveway earlier that same day.

[6]

As to the allegation of negligent road design, the trial judge said:

I 
    am of the opinion that there is no evidence that Mr. Rozenbooms fall is related 
    to inadequacies in the construction of the road surface on Morrell Place.  
    He fell on ice which covered all of the roadways within Willow Park.

[7]

On this appeal counsel for the plaintiff says the learned judge applied 
    an incorrect test in assessing the reasonableness of the defendants snow 
    removal practices.  He says the trial judge applied the wrong standard of 
    care to the defendants conduct and, in particular, should have not used the 
    snow removal practices of the City of Nanaimo as a standard for measuring 
    the defendants conduct.

[8]

I have not been persuaded that the trial judge erred in any way that 
    would permit this Court to intervene.  There was evidence on which the judge 
    could conclude that the defendants had a reasonable system in place for snow 
    removal and that the system was being implemented at the time of the accident.  
    The defendants had stockpiled sand and salt on site and they had a machine 
    operator and a dedicated machine for snow clearing at what was the first reasonable 
    opportunity.  The layout of the park and the location of the defendants residence 
    made it reasonable as the trial judge found for Morell Place to be the last 
    street in the park to be cleared.  The time for snow clearance in the park 
    was substantially less than that for residential streets in the City of Nanaimo.  
    There was no other evidence adduced by the plaintiff as to a different or 
    more exacting standard.

[9]

On this appeal the allegation of negligent road design was not pursued 
    and, in my view, the allegation of the defendants duty to warn is not tenable.

[10]

I see no basis on which this Court could interfere with the conclusions 
    reached by the trial judge.  I would dismiss the appeal.

[11]

DONALD, J.A.
: I agree.

[12]

HALL, J.A.
: I agree.

[13]

FINCH, C.J.B.C.
:  The appeal is dismissed.

The 
    Honourable Chief Justice Finch


