Judge dismisses lawsuit from Sudbury teen injured on mall escalator
In a decision released June 8, a Sudbury judge has thrown out a lawsuit by the family of a teenager who was injured on the escalator of the Rainbow Centre Mall in 2017. (File)
SUDBURY -- A Sudbury judge has thrown out a lawsuit by the family of a teenager who was injured on the escalator of the Rainbow Centre Mall in 2017.
It turns out the teen had been in the mall before and had been thrown out for, among other reasons, hanging off the escalator's moving handrail.
"On Nov. 11, (2017), he again grabbed the moving handrail with both hands and hung onto it while it dragged him upwards on the outside of the escalator," said the court transcript of the case, dated June 8.
"At or near the top, he lost his grip and fell to the ground. He sustained serious injuries including fractures to his right leg, pelvis, both wrists and jaw."
The family sued the mall owners, arguing they were responsible for the youth's injuries. Lawyers for the Rainbow Centre moved for what's called a summary judgment, in which the judge in the case makes a ruling without a trial.
According to the transcript, to make a summary judgment, the court must rule that there are no real issues to be heard at trial.
The law says that the owners of the mall were required to take all reasonable steps to ensure "that persons entering on the premises are reasonably safe while on the premises," the transcript said.
"The standard of care of an occupier is reasonableness, not perfection."
The lawyer for the teen argued that there were issues to be decided at trial – specifically, whether the owners of the mall knew how often people were misusing the escalator in this way, and whether they took steps to address the danger.
But the mall manager testified that, to his knowledge, no one had ever tried to hang from the escalator at such a height that they would be injured if they fell.
"His evidence was that the security company hired by the defendants maintained daily logs showing their employees’ activities each day and prepared incident reports any time there was a higher level of interaction with a mall patron," the transcript said.
"He was asked if he would expect security to intervene if they saw someone using the escalator as the plaintiff had. He answered 'yes.'"
Ensure safety of patrons
In his ruling, the judge said he didn't see any issues that needed further investigation at trial. The law requires the mall to take reasonable steps to ensure the safety of patrons, and the evidence before him indicated they had.
"The uncontradicted evidence is that the defendants contracted with a security firm to monitor the mall and that the area of the escalators was patrolled every 15 to 60 minutes," the judge wrote.
"In the absence of expert evidence on standard of care, this strikes me as entirely reasonable. As noted above, the standard of care of an occupier does not require perfection or unrealistic or impractical precautions against known risks."
He rejected arguments that the mall should have restricted access to the outside of the escalator, adding that there was no "expert evidence before me on design of the escalator, industry standards or costs."
And on the face of it, the judge said the teen's activity was obviously risky.
"There is no duty to warn of such an obvious and self-evidently dangerous activity as hanging from the railing of a moving escalator to a height at which injury is certain to result," the judge wrote.
"Any danger posed by the use of the escalator in this fashion was an obvious one. If you chose to hang on to the outside railing until you reach the top, you would certainly fall and be injured."
The judge then dismissed the case.
Read the full transcript here.