The Public Trustee for the Province of Alberta, personal representative of the Estate of Randall Scott Peevey, deceased Plaintiff - v. -, 2017 ABQB 89

Court of Queen ’ s Bench of Alberta Citation: Peevey Estate v Buffalo-Calf (Buffalo Hotel), 2017 ABQB 089 Date: 20170209 Docket: 1210 00368 Registry: Red Deer Between: The Public Trustee for the Province of Alberta, personal representative of the Estate of Randall Scott Peevey, deceased Plaintiff - and - Sheldon Buffalo-Calf, Tri-G Investments Ltd. and/or 373771 Alberta Ltd., operating as “Buffalo Hotel”, Geoff Goodwin, Thomas Goodwin and George Goodwin Defendants _______________________________________________________ Reasons for Judgment of J.T. Prowse , Q.C., Master in Chambers _______________________________________________________

[ 1 ] Randall Scott Peevey died as a result of an altercation which occurred outside a hotel bar in Red Deer, Alberta in the early hours of November 27, 2004. [ 2 ] The Public Trustee, on behalf of Mr. Peevey’s estate, commenced this action for damages against the other individual involved in the altercation, Sheldon Buffalo-Calf, and against the Buffalo Hotel, which owned the stairs and parking lot where the altercation occurred. [ 3 ] The Public Trustee has applied for

summary judgment against the Buffalo Hotel on behalf of Mr. Peevey’s estate. The owners of the Buffalo Hotel have cross-applied for

summary dismissal of the claim against it. [ 4 ] For the reasons which follow, I decline to give

summary judgment to either party because there are three critical and nuanced factual questions which cannot be decided on the materials before the Court, namely: (

i) the frequency of assaults occurring in the parking lot of the Buffalo Hotel, which would inform the issue of whether the Hotel should have employed a full time trained security employee/contractor on site during the evening/night shift in question, (ii) whether or not it was standard industry practise for a hotel such as the Buffalo Hotel to have on staff a full time security employee/contractor during the evening/night shift, and, (iii) whether, given the timing of events, the presence of a security employee/contractor would likely have prevented the death of Mr. Peevey.

Agreed Statement of Facts [ 5 ] The parties have entered into the following agreed statement of facts (I have not included sketches): • This case involves an incident that took place on November 27, 2004 at 503 J -50th Street Red Deer, Alberta, also known as the Buffalo Hotel (the "Buffalo Hotel"). • The Buffalo Hotel is a hotel, with a bar and restaurant located inside the building. • The Buffalo Hotel is owned and operated by the defendants, Tri-G Investments Ltd. and/or 373771 Alberta Ltd. o/a "Buffalo Hotel" (collectively “the defendants”). • The incident (defined below) occurred on the rear stairs and sidewalk immediately outside a rear entrance from the parking lot to the Buffalo Hotel lobby. • The parking lot is part of the same parcel of land as the Buffalo Hotel. • There are two other hotels located near the Buffalo Hotel. • Patrons from the other nearby hotels often came to the Buffalo Hotel to catch cabs. • The incident occurred on land that was owned by the defendants, and therefore at all material times, the defendants would be considered the occupier of the Buffalo Hotel, pursuant to the provisions of the Occupiers Liability Act . • The front desk for the Buffalo Hotel is located in the rear interior of the building, near the parking lot.

The exterior of the rear entrance was, to an unknown degree, visible from the front desk, either through a small window in the rear door of the Buffalo Hotel or through the rear entrance, if it were open. • In the early morning hours of November 27, 2004, there was an altercation between Mr. Peevey and some female patrons (who were on their way to a waiting taxicab) on the rear stairs leading to the parking lot outside the Buffalo Hotel Lobby. Mr. Sheldon Buffalo-Calf intervened: a. By placing Mr.

Peevey in a chokehold (for 2-4 seconds) at the top of the stairs leading from the parking lot outside the rear entrance to the Buffalo Hotel lobby; b. Mr. Buffalo-Calf then released the chokehold at the top of the stairs; c. Mr. Peevey fell forward striking his head at the bottom of the stairs outside the rear entrance to the Buffalo Hotel, suffering a skull fracture and brain hemorrhaging; • There was no evidence to indicate that Mr. Peevey was pushed. • Mr. Peevey died as a result of the injuries he sustained when he fell down the stairs.

The death certificate is included in the agreed exhibits. • The RCMP did not pursue any charges against Mr. Buffalo-Calf. • On the evening of November 26, 2004 and the early morning of November 27, 2004, the Buffalo Hotel had two employees on duty: the head bartender, Ms. Marni Read and one front desk clerk/maintenance person, Mr. William Sager. • Mr. Sager was present at the front desk of the Buffalo Hotel at the time of the Incident. At the conclusion of the Incident, he was

on the phone located at the front desk, when two individuals ran into the Buffalo Hotel and told Mr. Sager to call 9-1-1. Mr. Sager immediately hung up the phone and called 9-1-1. • The Buffalo Hotel did not have independent, third party, security posted at the Buffalo Hotel from the evening of November 26, 2004 to the early morning of November 27, 2004. [ 6 ] There is no evidence that either Mr. Peevey or Mr. Buffalo-Calf were patrons of the Hotel on the night in question. [ 7 ] The questions which arise are: • Did the Buffalo Hotel owe a duty of care to Mr.

Peevey? • If a duty of care was owed, did the Buffalo Hotel breach the duty of care? • Was Mr. Peevey’s death caused by the breach? The duty of care owed to Mr. Peevey [ 8 ] The Occupiers’ Liability Act (the “Act”) defines ‘visitor’ as follows: “visitor” means (

i) an entrant as of right, (ii) a person who is lawfully present on premises by virtue of an express or implied term of a contract, (iii) any other person whose presence on premises is lawful, or (iv) a person whose presence on premises becomes unlawful after the person’s entry on those premises and who is taking reasonable steps to leave those premises. [ 9 ] The facts indicate that the steps where the incident occurred were used by the public from time to time, including for catching taxi-cabs. There is no indication of any ‘no trespassing’ signs. Accordingly, Mr.

Peevey’s presence on the premises was lawful and he was a visitor as defined by the Act. [ 10 ] Sections 5 and 6 of the Act provide as follows: 5. 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. 6. The common duty of care applies in relation to (

a) the condition of the premises, (

b) activities on the premises, and (

c) the conduct of third parties on the premises. [ 11 ] It is clear from these provisions that the Buffalo Hotel owed a duty to Mr. Peevey to take such care as in all the circumstances of the case was reasonable to see that Mr. Peevey would be reasonably safe in using the premises, including being safe from the conduct of third parties such as Mr. Buffalo-Calf. Did the Buffalo Hotel fulfill its duty to Mr.

Peevey? [ 12 ] Counsel for the Peevey Estate say that the Buffalo Hotel should have had a designated security person (whether employee or contractor) on duty on the night in question to prevent a visitor such as Mr. Peevey from being assaulted by another visitor. [ 13 ] Whether this is correct at least partially depends on the frequency of assaults occurring on the parking lot of the Buffalo Hotel. [ 14 ] On that question, we have the following evidence given by a representative of the Buffalo Hotel on questioning (discoveries): Q Have the police ever been called to the Buffalo Hotel before? A Oh, for sure.

Q What type of incidents would they have been called to the bar before? A Mainly parking lot issues. It wasn’t a normal thing. I don’t know how often it would be, but usually parking lot -- similar incidents in the parking lot, disputes over cabs. And I can’t think of anything in particular, but there would be just normal day-to-day stuff, I guess. They would come by for -- some of our tenants were not necessarily -- enough said and -- but not on a regular basis, by any means, like a tough kids’ bar, type of thing.

We were mainly an older clientele, and most of the time by, you know, 10 or 11 o’clock most of our clients were gone, most of our patrons were gone, and we had very few incidents .

Q So the busy times of the bar would be earlier in the night there? A Yes. We were the only -- at one point, we were the only -- one of the three places, being the Arlington and The Valley, that they kicked their patrons out on the street, if it was 20 below or whatever, and they all came, and they would come around our property. Our property was known for where the cabs -- the way the one-ways were and the back allies were, is where the cabs would rotate around the block, and so they would come.· Other clientele from other businesses would gather in our parking lot and take the cabs.

So we would have to -- I don't know if defend is the word, but we 'would have ·to call -- look after our patrons, and then try and make sure that they got in the cabs that we called. Q And how would that be done? A Well, this cab is for John or Joe, or whatever, and when the cab drivers would pull up, they would say, cab for John or Joe, and John or Joe may or may not be able to get in that. If someone else with maybe a few too many drinks would decide to take that cab because people jump in cabs like that, then there may be incidents.

Q So did you say the Arlington and The Valley would kick people out, and they would come to -- A Yes. Q -- the Buffalo? So this was quite common that people would come from other bars there for cabs? A I would say, yes. We then started locking our lobby doors at -- I'm not sure at what point, and that sort of stopped a lot of that, of any problems we had in that area. [ 15 ] This topic, the frequency of assaults at the Buffalo Hotel, is a critical issue.

It is a very important factor in determining whether hiring a separate security person was warranted or not. [ 16 ] The testimony quoted above illustrates how unsatisfactory it is to decide this issue on the basis of one excerpt of a discovery transcript, rather than calling witnesses to testify before a trial judge.

A portion of the transcript makes is sounds like assaults were frequent (the police were called for ‘mainly park lot issues’) while another portion makes it sound like these incidents were uncommon (‘that stopped a lot of that, any problems we had in that area’). [ 17 ] In my view this critical factual finding should be made by a trial judge after hearing witnesses.

Even if there are no remaining witnesses to this incident, there may be witnesses who could clarify the frequency of assaults in the parking lot and on the rear steps of the Buffalo Hotel at the relevant time. [ 18 ] Another factor as to whether the Buffalo Hotel should have had a designated security person on duty on the night in question is what was the standard practice of similar hotels to the Buffalo Hotel with respect to employing designated security personnel.

While this is not conclusive, it is a relevant consideration in deciding the standard of care. [ 19 ] Nowhere in the evidence is there specific evidence giving examples of similar sized and located hotels and noting whether or not they employed designated security personel. The expert’s report submitted on behalf of Mr. Peevey [ 20 ] Counsel for the Peevey Estate put into evidence a report from Dennis Rovere dated November 1, 2015, regarding the standard of care to be expected from the Buffalo Hotel in the circumstances of this case. [ 21 ] Mr.

Rovere concludes that the standard of care to be expected from the Buffalo Hotel would be to have a separate designated security employee/contractor on duty when the incident occurred leading to Mr. Peevey’s death. [ 22 ] I find the report to be unsatisfactory for the following reasons: • A number of the observations in the report are critical of the Hotel (and perhaps rightly so) but the topics are irrelevant to the issue in question. For example, the author criticizes the Hotel for letting lone employees break up fights.

If this were a case where a lone employee had unsuccessfully attempted to break up a fight and someone was injured as a result then it would be relevant. It is not relevant to what happened to Mr. Peevey. • Likewise, the author seems to treat the incident in question as resulting from a policy whereby Buffalo Hotel employees encouraged partrons or third parties to assist in breaking up fights. There is no evidence that Mr. Buffalo-Calf was encouraged to intervene with Mr. Peevey by a Buffalo Hotel employee. • The author relies on a number of sources of factual background for his report.

Some of these sources are not admissible in a

summary judgment application (for example, hearsay evidence) and therefore his conclusions based on this material are likewise not admissible. One example would be the statement of Ella May McAllister. • Although the author at one point in his report observes that the number and severity of incidents involving fighting over cabs at the Buffalo Hotel was unknown, he also relies on the discovery answers of Mr. Goodwin (which, as I earlier commented, are quite ambiguous) to conclude that it was a significant problem.

He has not tracked down objective observers (for example, police officers working in Red Deer at the time) for verification of the degree to which this was a serious problem at the Buffalo Hotel. • Although the author indicates that having a minimum of one security person for every 50 patrons was an industry standard ‘typically recommended’ he does not tell us whether this recommendation was usually followed by hotels of the size and nature of the Buffalo Hotel.

[ 23 ] For these reasons I am not able to conclude that the Peevey Estate has established, to the standard necessary for a

summary judgment, that the Buffalo Hotel breached the standard of care owed to Mr. Peevey by failing to have a full time security person on duty on the night in question. Would the hiring of a security person have prevented Mr. Peevey’s death? [ 24 ] The agreed statement of facts indicates that Mr. Buffalo-Calf put Mr. Peevey into a chokehold for 2 to 4 seconds, then released him. Mr. Peevey then fell down the steps and hit his head. The whole incident may have taken 10 seconds.

It is not clear that having a security person on staff, presumably circulating both inside and outside of the Hotel, would have prevented this tragic incident. On the other hand, if Mr. Peevey and Mr. Buffalo-Calf struggled for a minute or two before Mr. Peevey fell, then perhaps the presence of a security person would have prevented the outcome. [ 25 ] All we have from the agreed statement of facts is that the chokehold lasted for 2 to 4 seconds. [ 26 ] Mr.

Rovere does observe in his expert’s report that: Had security been present or had a better-conceived security plan been implemented, it would have gone a long way to reducing the frequency of disputes and in the case of Mr. Peevey, would likely have prevented the incident from occurring. [ 27 ] It seems to me that this conclusion is one that should be considered and explored by a trial judge after hearing the expert in question being cross-examined, rather than forming the basis for a

summary judgment. [ 28 ] In the end, the onus of proof is on the Peevey Estate to satisfy the court that the presence of a security person would likely have prevented Mr. Peevey’s death, and I do not think that position is ‘unassailable’ so as to provide a foundation for a

summary judgment. Conclusion [ 29 ] In my view the record before the Court on these competing

summary judgment applications is not sufficiently clear to come to a

summary judgment determination, either on behalf of the Peevey Estate or on behalf of the Buffalo Hotel. Each of their

summary judgment applications are therefore dismissed. No costs shall be awarded to either party. Heard on the 28 th day of June, 2016 and the 29 th of November, 2016 Dated at the City of Red Deer, Alberta this 8 th day of February , 2017. J.T. Prowse, Q.C. M.C.C.Q.B.A. Appearances: Travis Lidstone Wier Bowen LLP for the Plaintiff

Chelsea Batten Scott Venturo for the Defendant Buffalo Hotel