nan 2001 SKQB 466 Q.B.G. A.D. 2000 No. 3347 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: SHIRLEY STONECHILD and WESTFAIR FOODS LTD. DEFENDANT Henri Chabanole for the plaintiff Patrick A. Kelly, Q.C. for the defendant JUDGMENT BALL J. October 18, 2001 [1] The plaintiff seeks damages for personal injuries sustained when she slipped and fell while grocery shopping in the defendant's Superstore in Regina on March 28, 2000. The defendant places in issue:(a) Whether it is liable to the plaintiff for the injuries she sustained in this slip and fall accident; and(b) The degree of personal injury sustained by the plaintiff as a result of the accident. [2] The plaintiff's claim followed the simplified procedure in Part Forty of The Queen's Bench Rules. The plaintiff's affidavit asserted that on March 28, 2000 she was shopping in the produce department of the defendant's Superstore located at 1621 Albert Street in Regina when at approximately 3:45 p.m. she suddenly slipped on a puddle of water on the floor and fell heavily to the ground, injuring her lower back, right knee and left ankle. The plaintiff remained on the floor until an ambulance arrived. She was then taken to the Pasqua Hospital Emergency Department, where she was bandaged, given painkillers and advised to rest and see her family doctor if her injuries did not improve. The plaintiff subsequently consulted her family doctor, who prescribed more potent painkillers and recommended physiotherapy. [3] On April 7, 2000 the plaintiff received the first of five physiotherapy treatments over five week period at Regina Sports and Physiotherapy Clinic. The plaintiff's affidavit asserts that she did not receive more treatments due to the fact that only five physiotherapy treatments were covered by Saskatchewan Health Plan and she could not afford to take additional treatments which may have helped her recovery. Moreover, her affidavit asserts that she decided doctors could not help her and she "tried to get better on her own". During cross-examination, the plaintiff explained that she had chosen to rely upon her faith in the Lord for healing her injuries. [4] Certain assertions in the plaintiff's affidavit relating to her injuries and treatment were inconsistent with the physician notes and medical reports filed in evidence and with information elicited during cross-examination. Those inconsistencies are not relevant to this decision and need not be set out in any detail. Suffice it to say that some of the injuries the plaintiff claimed occurred as a result of her slip and fall on March 28, 2000, appear to have been at least in part the aggravation of pre-existing conditions. [5] Taken as whole, the evidence indicates that the most significant injury sustained by the plaintiff as result of her slip and fall on March 28, 2000 related to sprain of her left ankle, for which the physiotherapist recommended certain exercises. The preponderance of the evidence indicates that that injury has not yet been resolved, primarily because the plaintiff declined to accept available treatment or follow the medical advice she received. [6] The defendant acknowledged that the plaintiff slipped and fell in the produce department at the Superstore on March 28, 2000 and estimated the time of the accident at approximately 4:00 p.m. Affidavit evidence filed on behalf of the defendant acknowledged that there was small amount of water on the floor in the vicinity of where the plaintiff fell. Nevertheless the defendant asserts that the fall was caused, at least in part, by the fact that the plaintiff was wearing worn running shoes without laces. The plaintiff acknowledged that there were no laces in her running shoes, but denied that they were badly worn or that they contributed in any way to her fall. [7] number of affidavits filed by the defendant established that regular cleaning regimen had been implemented in the store. It consisted of regular maintenance of the floors in each department by employees. Specifically, in the produce department employees were responsible to sweep or wet-mop aisles and floor areas at least once per hour. A "sweep log" was kept for each department and entries of these cleaning activities were made and initialled by the employees performing the work. Supervisors were responsible to ensure that these logs were properly kept and the schedules properly adhered to. [8] In addition to the above procedures followed by the produce department employees, the defendant employed General Services employees who were not attached to any particular department. Their responsibilities included regular inspections of the sales floor area in every department to ensure that all areas were free of any hazards such as spills, debris and obstructions. This began one-half hour before store opening each day. At 10:15 a.m., 2:45 p.m., 5:00 p.m., 6:00 p.m. and 8:15 p.m. each day the General Services employees began at the front entrance of the defendant's store and swept all common areas of the sales floor, swept and mopped the main aisles on both sides of the checkouts, the aisles at the rear of the store and the general merchandise promotional aisles. The General Services employees also maintained log. [9] An affidavit of Jack Ferwerda, the Superstore manager at the time of the accident, exhibited the General Services employee logs and "Retail Store Sweep Log" relating to the produce department for each day during the period March 27, 2000 to April 1, 2000, respectively. The logs indicated that floors in the produce department were regularly cleaned at least once per hour during the period ending April 1, and with very few exceptions the cleaning was by means of both dry and wet mop. On March 28, 2000 the produce department was both dry and wet mopped total of 16 times between 9:00 a.m. and 9:20 p.m. Each cleaning was by means of both dry and wet mop. At 1:43 p.m., 2:30 p.m. and 4:15 p.m. the floors in the produce department were cleaned by Leon Herperger, an employee of the defendant whose affidavit confirmed the cleaning and who was cross-examined by the plaintiff's counsel at the trial. The sweep log also indicated that at 12:50 p.m. and 2:52 p.m. the floor was wet and dry mopped by Cory Orban. No affidavit sworn by Mr. Orban was filed. Mr. Ferwerda, who had resigned as an employee of the defendant on or about June 30, 2001, testified that Mr. Orban had earlier left his employment with the defendant and could not be located. Mr. Herperger stated in his affidavit that since leaving the defendant's employment in September of 2000 he had not seen Mr. Orban and did not know his whereabouts. [10] In addition to the evidence of Mr. Ferwerda and Mr. Herperger, the affidavit evidence of two assistant managers employed at the time of the accident confirmed the cleaning regimen in place at the Superstore. CONCLUSION [11] The defendant, as owner and occupier of the Superstore, had a duty of care to the plaintiff. The judicial authorities have most often based the duty of care upon the invitor/invitee standard. In Maxay v. Ramsay Drugs Ltd. (1991), 1991 CanLII 7734 (SK QB), 89 Sask. R. 191 (Q.B.), Maurice J. proposed four part inquiry to determine whether or not an occupier has breached its duty of care to an invitee. [3] In determining whether there was breach of the duty, four part inquiry is conducted: 1. Was there an "unusual danger"? 2. If so, did the occupier know or have reason to know about it? 3. If he did, did the occupier use reasonable care to prevent damage from the "unusual danger"? 4. And if he did not, was the invitee contributorily negligent? [12] The defendant does not contest the presence of water on the floor in the vicinity of where the plaintiff slipped and fell although it does not concede that it was the water which caused the plaintiff to slip. [13] There have been many cases that have found slippery substance such as water or produce on the floor of grocery store to constitute an unusual danger. On the basis of all of the evidence, I am satisfied that the plaintiff has met the burden of establishing on a balance of probabilities that she slipped because of water on the floor of the store. The defendant did not know the water was there, but did know that water and other substances could be on the floor of the produce department, and also knew that reasonable steps must be taken to safeguard against the very type of accident experienced by the plaintiff. The evidence does not support an inference that the plaintiff's footwear caused or was a contributing factor to the slip and fall. These findings leave only the third of the four "Maxay" principles to be addressed. [14] The main defence offered by the defendant was that it used reasonable care in maintaining its premises, and as result was not in breach of its duty to the plaintiff as invitee. The bulk of the defendant's evidence, which dealt with the maintenance of clean aisles at the store, was intended to establish that the defendant had implemented and adhered to reasonable policy prior to the accident which injured the plaintiff. [15] If Mr. Orban's entry on the sweep log is accepted as evidence that the produce department floors were swept at 2:52 p.m., and if it is accepted that the plaintiff slipped and fell at approximately 3:45 p.m. (the plaintiff's estimate) or at approximately 4:00 p.m. (the defendant's estimate) it follows that the plaintiff slipped and fell approximately 53 to 68 minutes after that cleaning. Thus, the defendant says, this case cannot properly be distinguished from series of cases in which virtually the same procedures as those followed by the defendant in this case have been previously determined by this Court to have met the standard of care required (see, for example, Leibel v. Westfair Foods Ltd. (1999), 1999 CanLII 12649 (SK QB), 181 Sask. R. 267 (Q.B.); Kosteroski v. Westfair Properties Ltd. et al. (1997), 1997 CanLII 17181 (SK QB), 155 Sask. R. 37 (Q.B.); Hale v. Westfair Foods Ltd. (1955), 1995 CanLII 5780 (SK QB), 127 Sask. R. 223 (Q.B.); Mollenhauer v. Westfair Foods Ltd. (1996), 1996 CanLII 6959 (SK QB), 140 Sask. R. 172 (Q.B.); Ludwig v. Canada Safeway Ltd. (1986), 1986 CanLII 2980 (SK QB), 46 Sask. R. 116 (Q.B.) and Beaman v. Canada Safeway Ltd. (1993), 1993 CanLII 8928 (SK QB), 115 Sask. R. 100 (Q.B.)). [16] The plaintiff, argues however, that an adverse inference should be drawn by virtue of the defendant's failure to adduce evidence by Mr. Orban confirming that he had in fact cleaned the floor of the produce department at 2:52 p.m. and made the entry on the sweep log. Presumably, the adverse inference would be that the floor was not in fact cleaned at that time and that the entry was false. The result would be that the plaintiff's fall occurred some 75 to 90 minutes after the produce department floor had been swept-a deviation from the defendant's own policy significant enough to put this case in the category of those in which the Court has found liability: see, for example, Wilson v. Westfair Foods Ltd., 2000 SKQB 217 (CanLII); (2000), 192 Sask. R. 317 (Q.B.); Sebo v. Westfair Foods Ltd., 2000 SKQB 10 (CanLII); (2000), 2000 CanLII 19954 (SK QB), 190 Sask. R. 271 (Q.B.) and Grant v. Westfair Foods Ltd. (1998), 1998 CanLII 13561 (SK QB), 167 Sask. R. 133 (Q.B.). [17] An unfavourable inference can be drawn when, in the absence of an explanation, party fails to adduce the evidence of witness who would have knowledge of the facts and who would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against party who does not call material witness over whom he or she has exclusive control and does not explain it away. Such failure is said to amount to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it (see Murray v. City of Saskatoon (1952), 1951 CanLII 202 (SK CA), D.L.R. 499 at 505-6). [18] The defendant's Affidavit of Documents and Witnesses as required by the simplified procedure was sworn by Mr. Ferwerda on July 24, 2001. Schedule "D" to that affidavit listed the names and addresses of persons who might reasonably be expected to have knowledge of the events. Included in that list was Cory Orban, whose address is shown as being in care of The Real Canadian Superstore at 2055 Prince of Wales Drive in Regina. Taken at face value, this document seems to indicate that Mr. Orban remained in the employ of the defendant and under its control as late as July 24, 2001. However, Mr. Ferwerda, who resigned from his employment with the defendant on June 30, 2001, testified in cross-examination that Mr. Orban was not employed by the defendant and that efforts to locate him had not been successful. In their submissions counsel advised the Court that neither party had been able to locate Mr. Orban prior to the trial. [19] On their face, the sweep logs do not raise any suspicion or require any explanation. More specifically, the sweep log for March 28, 2000 does not deviate in any way from the sweep logs filed for the days before and after, with uniform and regular entries by both Mr. Herperger and Mr. Orban on all days during the time frame in question. The absence of Mr. Orban's evidence has been explained and the preponderance of the evidence is that he was neither employed nor under the control of the defendant. Accordingly, no adverse inference should be drawn by virtue of the fact that the defendant has not filed separate affidavit sworn by Mr. Orban. This finding is consistent with the decision of the British Columbia Supreme Court in almost identical circumstances in Bludau-Kugler v. Vancouver Community College (1998), 1998 CanLII 6709 (BC SC), 45 B.C.L.R. (3d) 74. [20] The preponderance of the evidence therefore establishes that the floor where the accident occurred had been swept very close to one hour before the plaintiff's unfortunate fall. A regular program of maintenance had been conducted by the defendant in that area of the store. The overall policies and practices of regular maintenance of the floor areas combined with the responsibility of each employee to carry them out were substantially the same, if not identical to, those considered by this Court in the Mollenhauer and Leibel group of cases. [21] I conclude that the defendant met the legal standard of care imposed upon it in the circumstances and is not liable for the injuries suffered by the plaintiff. To find otherwise would be to impose a standard upon the defendant in this case that is inconsistent with that previously imposed by this Court in almost identical circumstances. [22] Accordingly, the plaintiff's claim is dismissed with costs.
The plaintiff sought damages for personal injuries to her lower back, right knee and left ankle sustained when she slipped and fell while grocery shopping in March 2000. The defendant acknowledged the plaintiff fell in its produce department, but did not concede the water on the floor caused her to slip; the cause was, in part, her worn running shoes without laces. Liability and degree of personal injury were in issue. The claim proceeded under the simplified procedure under Part Forty of the Queen's Bench Rules. HELD: The claim was dismissed with costs. 1)The defendant had a duty of care to the plaintiff as owner and occupier. The courts have most often based the duty of care on the invitor/invitee standard. Maxay v. Ramsay Drugs proposed four-part inquiry to determine whether or not an occupier has breached its duty of care. 2)The plaintiff established on a balance of probabilities that she slipped because of water on the floor. The evidence did not support an inference that her footwear caused the slip or was a contributing factor. 3)An adverse inference was not drawn from the defendant's failure to adduce evidence confirming its employee had in fact cleaned the floor. The employee was no longer employed by the defendant. Neither party was able to locate him. 4)Some of her injuries were, in part, the aggravation of pre-existing conditions. The most significant injury was sprain to her left ankle, which had not been resolved primarily because the plaintiff declined to accept available treatment and failed to follow medical advice. The inconsistencies in her affidavit and the physician notes or medical reports respecting her injuries and treatment were not relevant to this decision. 5)A 'sweep log' was kept for each department and employees made regular inspections of the sales floor area in every department. The plaintiff slipped and fell about an hour after the last sweeping. A regular program of maintenance was conducted in the area. The overall policies and practices of regular maintenance and responsibility of each employee were substantially the same if not identical to those considered in the Mollenhauer and Libel group of cases. The defendant met the legal standard of care imposed in the circumstances and was not liable for the plaintiff's injuries. To find otherwise would be to impose a standard that is inconsistent with that previously imposed by this court in almost identical circumstances.