Municipal governments often urge people to shovel snow on sidewalks in front of their property.

But a recent decision in B.C. Supreme Court has absolved two homeowners of liability after a senior suffered a serious injury due to black ice in December 2017.

Darwin Der, 76, sued Ang Zhao and Qianqiu Huang in June 2018; two months later, Der added the City of Burnaby as a defendant.

Zhao and Huang denied they were responsible for Der falling on the city-owned sloped sidewalk in front of their home in the 8600 block of 12th Avenue.

As Der approached the sidewalk, it appeared to him that there was a two-foot diameter path. 

"He did not have any indication of potential black ice because he believed that the sidewalk had been completely cleared of snow and ice where the concrete was fully visible," Justice Heather MacNaughton wrote in her ruling. "He did not have to step over a ridge or mound of snow as he stepped onto the sidewalk from the street. As he stepped onto the sloped sidewalk, just ahead of his wife, his feet slid out from under him and he immediately fell hard onto his back and head."

The injury was so severe that Der required surgery to fuse his spine from levels C-2 to C-6.

Zhao and Huang applied to sever the issue of liability from damages, which was granted by the judge.

MacNaughton accepted their argument that they owed no "duty of care" to Der—and therefore, Der's lawsuit against them should be dismissed.

"It might be a different situation if Mr. Der’s argument was that Mr. Zhao’s and Ms. Huang’s actions, in and of themselves, created a danger which caused reasonably foreseeable harm to users of the sidewalk," MacNaughton wrote. "However, that is not his argument. He does not argue that Mr. Zhao’s and Ms. Huang’s actions caused a direct danger, but argues instead that their actions, combined with additional circumstances relating to weather patterns, and the slope and structure of the sidewalk, led to the formation of a danger after the fact.

"It is in the context of these circumstances that Mr. Der bears the burden of establishing that reasonable foreseeability and proximity are met such that it would be just and fair to impose a duty of care on Mr. Zhao and Ms. Huang," the judge continued. "He has not met this burden."

In an interesting twist, the judge included this paragraph near the end of her ruling:

"If, as Mr. Der concedes, property owners who do not clear sidewalks abutting their properties have no legal responsibility for potential resulting danger on those sidewalks, but those who comply with municipal snow removal bylaws expose themselves to liability, the result would be that property owners would have an incentive not to make any efforts to comply with snow removal bylaws. The potential loss of the assistance of private property owners in snow removal efforts out of fear of the potential legal ramifications would be likely to cause more danger than it would prevent."