Jansen v. J.M. Reynolds Pharmacy Limited, 2026 NSSC 79
Reading time: 5 minutes (approx.)
By: Hayley Gardner (Articled Clerk)
Ms. Crocker, the plaintiff (name changed after the commencement of litigation), was a customer of a Pharmasave Pharmacy located in Liverpool, Nova Scotia and operated by the defendant, J.M. Reynolds Pharmacy Limited. On May 23, 2021, Ms. Crocker suffered a trip and fall while attending the pharmacy. The present decision arises from a trial on the issue of liability, only.
The entrance to the defendant’s pharmacy was decorated with planter beds, some of which were surrounded by a wooden frame. One planter bed, located directly to the right of the entrance, contained only a spruce tree and a large rock and was not surrounded by a wooden frame or any other type of border. Ms. Crocker was walking to the entrance of the pharmacy from the parking lot when she rounded the front corner of the building and stepped onto the lip between the sidewalk and the planter bed containing the tree. The soil in the bed was about one inch lower than the sidewalk. Stepping on the lip caused Ms. Crocker’s right ankle to roll over and, as a result, she fell and suffered a broken hip.
As the occupier of the pharmacy building, the defendant owed a duty of care to its customers to ensure that they were reasonably safe while on the premises. Thus, the question before the court was whether the defendant had breached its standard of care.
Ms. Reynolds, one owner of the defendant company, testified that the planter bed in question had actually been surrounded by a wooden frame, like the beds containing flowers, at some point in the past. However, she said it was removed after the wooden boards broke down due to wear and tear. Mr. Reynolds, the other owner, testified that he was responsible for giving landscaping instructions to the company hired to tend to the planter beds outside the pharmacy, but he failed to introduce any evidence showing what work, if any, had been performed on the planter beds. The court heard from an expert in the field of landscape architecture, who testified that the industry standards in relation to the maintenance of planter beds suggest that they should be periodically raked and topped up with mulch or planting materials to address any changes in the height of the ground that may occur over time.
The court considered a number of factors, including those set out in the Occupiers’ Liability Act, S.N.S. 1996, c. 27, to determine whether the defendant had breached its standard of care. The most important factor, it said, was whether or not the risk was one that the occupier may reasonably be expected to offer some protection from. It was relevant here that the planter bed had previously been surrounded by a wooden frame, which showed that the defendant had actually offered protection from this risk in the past. Additionally, the fact that many of the pharmacy’s customers were elderly persons with mobility issues made the need for this protection all the more apparent.
The defendant therefore breached its duty and standard of care, and, having failed to put forward any evidence of a reasonable inspection and maintenance regime, was found liable in negligence for Ms. Crocker’s fall.
The court lastly considered the defendant’s allegation of contributory negligence. Ms. Crocker had been aware of the existence and location of the planter bed, but not of the height discrepancy between it and the sidewalk. She admitted that she had not looked down at the ground at all while rounding the corner. The court found that, had she done so even once, she would have better appreciated the location of the lip between the sidewalk and the bed. She was therefore found to be 25% contributorily negligent for failing to do so.
