The Defense Delivers

 

Wood v Gravelle, Court File No. CV-09-114.

On December 4, 2014, Chantal M. Brochu of Buset & Partners LLP obtained a judgment in favour of homeowners being sued for a slip and fall on their front steps following a four-day jury trial in Thunder Bay, Ontario. Damages were assessed at over $1M.

The plaintiff delivered newspapers to the defendants’ home daily for 6 months. He slipped and fell on the defendants’ front porch steps on a frosty October morning in Thunder Bay. Since no one, not even the plaintiff, saw any ice, the plaintiff’s case turned on a theory that the defendants had neglected to replace a perpetually leaking eavestrough that left a frozen puddle of water on the steps. The defendants were generally acknowledged, even by the plaintiff, to have been conscientious homeowners with a well-maintained property.

The plaintiff’s theory rested on the combined effect of three pieces of evidence: (1) the presence of discolouration consistent with moisture on the top step, visible in a picture taken the day after the accident; (2) the replacement of the eavestrough shortly after the accident (the defendants denied any connection between the replacement and the accident); and (3) the testimony of a former friend of the defendants who claimed to have observed puddles on the steps from a leaking eavestrough.

The jury concluded that the defendants had met the duty imposed on them by the Occupiers’ Liability Act to take reasonable care to ensure their premises were safe. Sometimes accidents happen without the homeowner being at fault. 

Saisho v Loblaws Cos, 2014 ONSC 1949, 2014 CarswellOnt 3872, aff’d 2015 ONCA 172, 2015 CarswellOnt 3586.

On December 19, 2007, the 90-year-old plaintiff was shopping at a bulk item grocery store. Another patron (the individual defendant) pushed a shopping cart into him. The shopping cart was overloaded, which may have prevented the individual defendant from seeing the plaintiff in his path had he not been distracted by his friend. The plaintiff was seriously injured and spent the last year of his life in the hospital. His damages were assessed at over $500,000.00.

Chantal M. Brochu of Buset & Partners LLP successfully defended Loblaws both at trial and on appeal.

Liability turned on whether the store employees ought to have intervened to prevent the individual defendant from pushing what was described as a dangerously overloaded shopping cart from the cash registers to the exit.

In reasons for judgment released March 26, 2014, following a four-day trial in December 2013, the trial judge found that there was “no doubt that if the cashier observed an obviously overloaded cart, it would be incumbent on the employee to try to prevent the customer from moving the cart until it was in a position where it could be moved safely”: para 70. The issue was “whether or not any of the employees actually ‘saw something’ when [the individual defendant] started moving his overloaded cart”: para 70.

The store had a general policy to ensure the safety of patrons and employees. The evidence demonstrated that the employees were aware of this policy and understood that they were to react to situations wherein a patron may have overloaded his cart. The trial judge found that none of the employees whose inaction was impugned had acted unreasonably, and that the store owner could not be faulted for failing to have a specific policy addressing overloaded carts. The store owner had met its duty under the Occupiers’ Liability Act to keep its premises reasonably safe for the plaintiff: para 80.

The trial judgment was upheld on appeal in an endorsement released on March 17, 2015.

A judgment against the store owner defendant in this case would potentially have had far-reaching implications for “no frills”-type grocery stores that leave customers to be responsible for bagging and boxing their own purchases and loading their own carts without assistance from a cashier.  

  • This aricle appeared in the Spring 2015 Issue of the Canadian Defence Lawyers Newsletter.