Reichert v Home Depot Canada Inc, 2017 ABQB 184

Court of Queen’s Bench of Alberta Citation: Reichert v Home Depot Canada Inc, 2017 ABQB 184 Date: 20170317 Docket: 1401 01446 Registry: Calgary Between: Lawrence Reichert and Her Majesty the Queen In Right of Alberta Plaintiffs - and - Home Depot Canada Inc., Home Depot Holdings Inc., Bradbosh Lawn Services Inc. operating as Bradbosh Landscaping Services, XYZ Corporation, and John Doe Defendants _______________________________________________________ Reasons for Judgment of J.T.

Prowse , Master in Chambers _______________________________________________________ [ 1 ] On March 22, 2012, at approximately 10:00 a.m. the plaintiff Lawrence Reichert (“Reichert”), a customer of Home Depot, was walking in the parking lot of the Home Depot on Macleod Trail in Calgary when he slipped on snow and fell, injuring himself (the “accident”). [ 2 ] Reichert commenced this action for damages against the defendants Home Depot Canada Inc. and Home Depot Holdings Inc. (collectively “Home Depot”) and the defendant Bradbosh Lawn Services Inc., operating as Bradbosh Landscaping services (“Bradbosh”), the contractor hired by Home Depot to remove snow.

[ 3 ] Home Depot and Bradbosh have each applied for

summary dismissal of the action against them. [ 4 ] For the reasons which follow I am granting the

summary dismissal applications. The facts [ 5 ] I will deal with the facts first because, when the facts are considered, it becomes clear that certain arguments which were presented to the Court are not relevant. [ 6 ] The climate data put in evidence shows that, in the 15 days leading up to the accident, with one exception, either no snow fell or only a trace amount fell. The one exception was 9 days before the accident, when a mere 0.4 cm fell.

That is less than ¼ inch, 9 days before the accident. [ 7 ] Meanwhile, the daily high temperatures during those 15 days in March ranged from 2.9 degrees celsius to 15.3 degrees celsius. It was above 10 degrees celsius for 7 of those 15 days. [ 8 ] The parking lot was a large paved surface. It is not surprising then that, leading up to the date of the accident, the parking surface was clear. [ 9 ] Bradbosh’s deponent was cross-examined as follows about the state of the parking lot on March 19 th , three days prior to the accident: Q. Okay.

So what does this tell us about the state of the Home Depot parking lot on March 19 th ? A. It would tell us that it was in good condition. Q. Okay. And what does “good condition” mean? Q. Safe. Free of slipping hazards. Realistically speaking, that parking lot has great sun exposure, so it’s usually very bare, so it’s not a big surprise. [ 10 ] There was a snowfall on the morning of the accident.

Here is how Reichert describes the scene: The Accident occurred when I was walking across a lane way within the parking lot located on the Premises of [Home Depot], when I slipped and fell on accumulated snow, thereby causing me to sustain severe bodily injuries. I recall and do verily believe that the lane way in which I slipped and fell, as well as the whole area of the Premises , was covered in approximately one half an inch to an inch of snow from a snowfall that occurred that morning.

I further recall and do verily believe that I fell due to my right foot losing its grip on the snow. (emphasis added) [ 11 ] Reichert’s description is not disputed. The parking lot was covered with a thin layer of snow and this would have been obvious to the plaintiff and to the defendants. [ 12 ] Arguments centering around what inspections the defendants did or did not do, and whether those inspections were properly recorded, are not relevant.

The snow was there for all to see. [ 13 ] To illustrate the point, one typical type of slip and fall is fallen fruit (for example, a grape) in the produce aisle of a grocery store. The grocery store will defend a suit on the basis that it was not aware of the grape on the floor and that it had established and followed a sensible system of inspection to detect this type of slipping hazard.

It needs to show that it made inspections of the floor at reasonable intervals and kept records to demonstrate that it made those inspections. [ 14 ] However, if the evidence shows that the store manager was aware of the grape on the floor, the system of inspection becomes irrelevant.

The only question that is relevant is why the store manager did not send an employee to remove the grape from the floor. [ 15 ] See, for example, Goodkey v Canada Safeway Ltd. , 2000 ABQB 376 , 2000 CarswellAlta 417, where the defendant was aware of a patch of ice which had resulted from water escaping from two water taps on the front wall of the store which had been, for some unknown reason, left on the night before the accident. [ 16 ] In Goodkey the assistant store manager was alerted to the problem with the taps by another employee and went out to inspect.

He saw ice, two inches thick, formed under the taps and running in a two foot wide strip across the sidewalk. The Court observed, at para. 17: In the face of specific knowledge of the danger, the defendant failed to take reasonable steps to protect its customers who crossed the roadway from the parking area to the store; and was therefore negligent. The defendant argues that it was not foreseeable that persons unknown would turn the exterior tap on and create the hazard. I conclude, however, that in the face of Mr.

Strand's specific knowledge that that had occurred, foreseeability is no longer an issue. [ 17 ] And so in this case, the parties being fully aware of the snow, the question is whether, in exercising reasonable care, the defendants ought to have done something about the thin layer of snow? Or, to put it more formally, did the defendants, in not removing or treating the snow, fail to take such care as in all the circumstances of the case was reasonable? Home Depot’s duty of care [ 18 ] Home Depot acknowledges that it owed a duty of care to Reichert, who was a ‘visitor’ to its premises under the Occupiers’

Liability Act (the “Act”), as follows: 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. (emphasis added) [ 19 ] Although it knew about the snow on its parking lot, Home Depot did nothing to either remove or treat the snow. Was this a failure to take such care as was reasonable in the circumstances?

Bradbosh’s duty of care [ 20 ] Was Bradbosh an ‘occupier’ of the Home Depot parking lot? An occupier is defined under the Act as meaning: (

i) a person who is in physical possession of premises, or (ii) a person who has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises. [ 21 ] Bradbosh’s status with respect to the parking lot is that, under its contract with Home Depot, it would attend to snow and ice removal. It was under strict guidelines in that regard.

For example, the contract forbids it from removing under 2” of snow. [ 22 ] In the circumstances, Bradbosh was not, in my opinion, an occupier of the parking lot. [ 23 ] However, if Bradbosh failed to carefully carry out the contractual duties which it undertook to Home Depot, it would be foreseeable that personal injury to visitors might occur, and thus, in my mind it owed a duty to visitors, such as Reichert, to take reasonable care in carrying out the work it undertook to do under its contract.

The options available to the defendants [ 24 ] The defendants’ options were to either leave the snow as it was, to remove it or treat it. [ 25 ] With respect to removing the snow, given the size of the parking lot, removal would need to be done by vehicular mounted equipment. [ 26 ] In other words, while the snow on the sidewalk to the Home Depot was cleared by hand on the morning in question (co- incidentally, likely at the same time that Reichert slipped in the parking lot) nobody has suggested that the whole parking lot should have been cleared of snow by individuals working with hand-carried or hand-guided tools (shovels, blowers etc.). [ 27 ] Bradbosh’s deponent was asked about this.

In the following exchange, the “crew” were the workers who were there to deal with the sidewalk, not the parking lot, and the reference to “driveways” is a reference to the parking lot: Q. Okay. But if you were required to use salt on those driveways, how would the guys from your company know where to put it if they weren’t looking through the parking lot to find the icy patches. A. That crew would not be taking care of the parking lot. Q. Okay. A. We bring trucks that take care of the parking lot. Quite frankly, if you’re trying to take care of a parking lot, you can’t hold that much salt with a person.

It would be like going into a gun fight with a knife. It makes no sense. (emphasis added) [ 28 ] I digress for a moment to deal with the topic of ‘icy patches’ mentioned in the above quote. There is no evidence that Reichert slipped on an ‘icy patch’. He slipped on the snow that covered the whole parking lot. Absent evidence that Reichert slipped on an icy patch, discussion of who went out to look for icy patches is irrelevant. [ 29 ] With respect to the use of vehicular mounted equipment on the parking lot, we know that Home Depot’s policy was not to remove snow where less than 2” had fallen.

Its contract with Bradbosh prohibited Bradbosh from removing less than 2” of snow from the parking lot. [ 30 ] Home Depot’s counsel says that this is the industry standard, and he cites reported decisions which acknowledge the 2” standard.

In addition, Bradbosh’s deponent in his affidavit testified that snow removal from a parking lot only on accumulation of 2” or greater is the industry standard. [ 31 ] Even if it were held that the industry standard was to remove less than 2” of snow from parking lots, would it have been removed before Reichert slipped and fell? [ 32 ] That topic was dealt with in the following answers provided by Bradbosh’s deponent on re-examination under oath. He was referred to exhibit ‘H’ which showed that the sidewalk was shovelled beginning at 9:48 AM, and testified as follows: Q. Okay.

So why the shift start at 9:00 that we see at the bottom of Exhibit H? A. It was a late snowfall, so it – when the snow doesn’t start until 7:00 A.M., you can’t clear it before 7:00 a.m. Q. Do you know --.

A. Or even if it starts, you know, shortly after that. Or before that even, it’s not practical. Q. Okay. Do you know what the opening hours for the Home Depot store at Chinook was? A. Not 100 percent, but I would insinuate 5:00 or 6:00 a.m. Q. So... Sorry; I’m just trying to understand this, So the late start – I’m calling it “the late start” because 7:00 A.M. is the noted time when you – A. Yes. Q. But that’s explained by the fact that the snow started later. A. Correct. Q. Okay. So to Mr. Suntjen’s question then about the parking lot, what ...

In circumstances of a late snow – “late” being after the opening hours of a commercial premises – what is the policy or procedure as far a parking lots are concerned? A. Well, in – I guess we should say circumstances of this case we’re facing. And I think we’re agreed on this, Mr. Suntjens, that the balance of the evidence is half inch to an inch of snow? MR. SUNTJENS: Yes. MR. CLINE: Okay. A. Well, it doesn’t meet the trigger.

But even if it did, we wouldn’t have time to get in there and clear the snow, just because the parking lot is filled, so ...We would have to wait till the nighttime, because it’s not safe to clear the snow when it’s filled with vehicles going back and forth, people backing up. Q. MR. CLINE: Okay. What about Mr. Suntjen’s question then about slippery spots? What do you expect happens in circumstances where you have half inch to an inch of snow? A. When you get the half inch to inch of snow, you can’t just lay salt over top of it. In fact, the contract tells you not to, specifically.

Just because you’re not going to magically melt an inch of snow just by putting salt on it. What you have to do is you got to wait till cars drive over it, and, you know, it starts to disappear, and then if there’s any slippery spots left, then over night time you’d be ploughing them out and salting them to make sure they’re safe. MR. CLINE: Okay. Those are all the questions I have. MR.

SUNTJENS: Nothing arising. [ 33 ] To sum up, the evidence before the Court is that it was the industry practice not to remove less than 2” of snow from a parking lot. [ 34 ] Even if that were not the industry standard, the evidence is that it was not safe to attempt to deal with the minimal amount of snow in question until the ensuing night, when the Home Depot was closed, and vehicular clearing/sanding/salting could take place if needed without endangering shoppers using the parking lot. [ 35 ] There was no evidence that Reichert fell on an icy or slippery spot.

He simply fell on the snow which had just recently fallen. [ 36 ] Case law is clear that an occupier does not guarantee the safety of premises: Moens v Homberg L.P.

Management Incorporated , 2009 ABQB 35 at para 53 . [ 37 ] The present case is an example of a situation where there was no failure to take reasonable care but, unfortunately, an injury occurred nevertheless. [ 38 ] Accordingly, it is very likely (unassailable) that the defendants will succeed, if the matter proceeds to trial, in establishing that they took such care with respect to Reichert as in all the circumstances of this case was reasonable, to see that Reichert would be reasonably safe in using the Home Depot parking lot. [ 39 ] Accordingly I allow the application of the defendants for

summary dismissal. [ 40 ] If the parties cannot agree on costs then they may approach me for a ruling in that regard. Heard on the 07 th day of March, 2017. Dated at the City of Calgary, Alberta this 17 day of March, 2017.

J.T. Prowse M.C.Q.B.A. Appearances: Clint R. Suntjens Litwiniuk & Company for the plaintiffs Nabeel Peermohamed Brownlee LLP for the defendant Home Depot Peter W. Cline Verjee & Associates for the defendant Bradbosh Landscaping