Dennistoun v. Costco Wholesale Corporation, 2010 ABQB 304

Court of Queen ’ s Bench of Alberta Citation: Dennistoun v. Costco Wholesale Corporation, 2010 ABQB 304 Date: 20100505 Docket: 0603 11637 Registry: Edmonton Between: Dawn May Dennistoun Plaintiff - and - Costco Wholesale Corporation Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Dawn May Dennistoun claims that Costco is liable for an injury she suffered when she fell in the Costco warehouse parking lot.

The quantum of damages has been determined by agreement at $30,000. The question is whether Costco is liable. [ 2 ] Ms. Dennistoun’s injury occurred on December 28, 2004. Her testimony as to the details of the incident was as follows: She went to the Costco warehouse at 136 Avenue and 50 Street in Edmonton to shop for groceries in the early afternoon. She parked her Toyota Rav4 in the Costco parking lot. She walked from her car to the warehouse, did her shopping, and pushed the shopping cart loaded with her purchases to her car in the parking lot.

She positioned the loaded shopping cart near the rear driver’s side door of her vehicle in order to load her groceries into the back seat of the car. She stood beside the open door and pivoted back and forth between the cart and the door placing purchased items on the back seat. She does not know how many times she pivoted between the cart and her car when loading the groceries. The portion of the back seat closest to her was full before her shopping cart was empty. In order to load

the last items in her car she climbed into the car, reached over the items she had already loaded, and placed the last items on the passenger side portion of the back seat. Then she stepped backwards to exit the car. She placed her right foot on the ground. She testified that her foot slipped on the ice. Her foot moved to the left. She fell to the ground, landed on her right hip and injured it. [ 3 ] She testified that when she arrived at the Costco parking lot it was snowing lightly, and was still snowing lightly when she left.

She does not recall any concern about the state of the snow on the parking lot surface at any point before she fell. She testified that there was a light dusting of snow on the ground. She did not see any ice on the ground either before or after she fell. She explained that this was because there was a light dusting of snow on the ground inviting the inference that this covered and obscured the ice on which she slipped. Also, after she fell she was in excruciating pain and her attention was focussed on that problem.

She was wearing snow boots. [ 4 ] Following her fall, some people who were nearby helped her into her car. She drove to her home arriving there by about 3:45 p.m. She called her son. He came and took her to the hospital where she was admitted to the emergency department at 5:44 p.m. [ 5 ] Ms. Dennistoun did not report the accident to Costco for six weeks. She called Costco to report her injury on February 14, 2005. She testified that she did not report it earlier because she was not aware that there was anything that could be done regarding compensation for her injuries.

Initially in cross-examination she denied that anyone had told her that Costco had insurance but later she acknowledged that when she called Costco she likely mentioned that someone had recently told her that she should make a claim because Costco had insurance. [ 6 ] The evidence includes an Environment Canada report regarding the weather in the month of December 2004. The report was put in evidence by agreement. It indicates that the data it contains was gathered at the Edmonton Municipal Airport which is 18 blocks south and 56 blocks west of the Costco parking lot.

The data in the report includes snowfall information. It indicates that there was no snow on December 27 or 28, 2004. On December 26, 4.8 cm of snow fell. On December 25, 2.0 cm of snow fell. No snow fell on December 24. The extent to which the snowfall at the Costco parking lot might differ from that at the airport was not addressed in the evidence. The report also indicates there was 11.0 cm of snow on December 4 and 5, no snow on December 15 or 16, and 10.8 cm of snow on December 20 and 21.

These dates are significant because they are the dates that Costco’s records show there was snow removal from the parking lot. [ 7 ] Mr. Bryan Napper, an assistant manager at the Costco warehouse in question, testified as to Costco’s snow removal policy and practices. He testified that it is part of the job of each of several managers to inspect the parking lot when they arrive at the warehouse for their shift. As their shifts start at different times, this results in inspections by managers at 4:00 a.m., 5:00 a.m., 8:00 a.m., and 1:00 p.m.

If there has been snowfall that requires clearing, the manager will call the contractor who has been retained to do the clearing. That call would usually be made in the early evening so that the clearing can be done after the warehouse closes and the parking lot is empty of cars. If snowfall during the day is sufficient to make it difficult for customers to push carts to their parked cars, the contractor will be called out during the day to clear the traffic lanes, though, obviously, it is not possible at that time to clear between the parked cars.

Costco records indicate that the contractor had performed snow removal operations on December 5 and 6, December 15, December 20 and 21, and December 24. There was no snow removal between December 24 and 28, the day of Ms. Dennistoun’s fall. Snow removal operations on each of these occasions other than December 15 consisted of pushing and grading the snow, loading the snow, and applying sand chips to the parking lot. [ 8 ] It is agreed that the Occupiers’ Liability Act, RSA 2000, c. O-4 applies in this case. It is agreed that Costco is an “occupier” as defined in that Act.

Section 5 of that Act provides: An occupier of premises owes a duty to every visitor on the occupier’s premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there. [ 9 ] The onus is on Ms. Dennistoun to prove that her accident was the result of the condition of the premises - i.e. that she slipped on ice.

The burden is on Costco to prove that it took such care as was reasonable in the circumstances to see that Ms. Dennistoun would be reasonably safe in using the parking lot of its warehouse as she did. [ 10 ] In my view Ms. Dennistoun has failed in meeting her burden. Though it may therefore be unnecessary for me to so determine, I am also of the view that Costco has succeeded in meeting its burden.

[ 11 ] Ms. Dennistoun’s conclusion that she fell because she slipped on ice is little more than a speculative assumption on her part. There is significant reason to doubt its accuracy. Ms. Dennistoun never saw any ice either before or after she fell. More importantly, she did not perceive there was anything slippery about the spot where the ice would have been located, if it existed, though she spent considerable time standing and moving on that spot. The spot where she placed her foot when she backed out of the car must have been the same spot where she stood to load her groceries from the cart into the car.

Though she pivoted on that spot several times she did not perceive it to be a slippery spot. Her manoeuver in backing out of the back seat space of her car, a space loaded with groceries that she had reached over, is a manoeuver during which a person could easily lose their footing and fall without any involvement of ice. That her call to Costco to report the injury six weeks later was motivated even in part by the understanding that Costco would have insurance undermines her credibility.

So does the fact that she initially denied that anyone told her she should contact Costco because it would have insurance and then acknowledged that she said just that. For these reasons I am not satisfied that her speculative assumption that it was ice on the parking lot that caused her to fall is reliable. She has not proved that, more likely than not, ice caused her to fall. [ 12 ] However, even if it was ice that caused her fall, I am satisfied that Costco took reasonable care in all the circumstances in December 2004 to see that Ms. Dennistoun would be reasonably safe in using its parking lot.

Its obligation was to take reasonable steps in the circumstances. Obviously the circumstances include that snow and cold in the winter in Edmonton create a hazard for pedestrians which it is not possible to entirely eliminate. If there was ice in the spot where Ms. Dennistoun slipped, which, as noted, has not been proved, it was there despite Costco’s reasonable efforts to limit the hazard. [ 13 ] Costco is not liable for Ms. Dennistoun’s injury. I dismiss the action. Costco is entitled to costs. Heard on the 3 rd day of May 2010. Dated at the City of Edmonton, Alberta this 5 th day of May 2010. Brian R.

Burrows J.C.Q.B.A. Appearances: Peter S. Wong and Derek Stone for the Plaintiff Shad A. Chapman for the Defendant