Fulber v. Browns Social House Ltd., 2013 BCSC 1760

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fulber v. Browns Social House Ltd., 2013 BCSC 1760 Date: 20130820 Docket: 12-1169 Registry: Victoria Between: Genevievre Madeleine Fulber Plaintiff And Browns Social House Ltd. and Rumpel Investments Ltd. Defendant Before: The Honourable Madam Justice Gray Oral Reasons for Judgment In Chambers Counsel for the Plaintiff: J. Aiyadurai Counsel for the Defendant, Rumpel Investments Ltd.: K. McCullagh Place and Date of Trial/Hearing: Victoria, B.C. August 20, 2013 Place and Date of Judgment: Victoria, B.C. August 20, 2013 [ 1 ] THE COURT: Ms.

Fulber fell on February 19, 2011, at the restaurant premises of the defendant, Rumpel Investments Ltd., which I will refer to as "Rumpel". [ 2 ] Ms. Fulber broke bones in her ankle, and I will say more about her injuries shortly. She sued both Rumpel and Browns Social House Ltd. for damages, claiming breach of the Occupiers Liability Act , R.S.B.C. 1996, c. 337, and negligence. Her claim against Browns was dismissed by consent. [ 3 ] Rumpel is the operator of a franchise known as the Browns Social House restaurant in Victoria, B.C., and that is where Ms. Fulber was injured. Rumpel has applied to have Ms.

Fulber's claim dismissed pursuant to the

summary trial rule, which is Rule 9-7 of the Supreme Court Civil Rules . Rumpel argued that the evidence shows that Ms. Fulber cannot establish that there was any liquid or other substance on the floor which caused her fall, and that therefore she cannot establish that any unsafe conditions caused the accident. [ 4 ] Ms. Fulber is opposed to a determination of the case under the

summary trial rule at this time. [ 5 ] Mr. Aiyadurai, her counsel, argued that it would be premature to decide the issue of liability at a

summary trial now and argued that Ms. Fulber ought to be able to pursue other investigations. [ 6 ] Rumpel concedes that it is an occupier under the Occupiers Liability Act . Rumpel also concedes that it owed a duty to Ms. Fulber as a patron of the restaurant to take the care required under the Occupiers Liability Act . Rumpel argued that there is no evidence that Ms. Fulber's fall was caused by any act or omission of Rumpel. [ 7 ] Ms. Fulber was a patron of the restaurant on Saturday night, February 19, 2011. It was Ms.

Fulber's fifth visit to the restaurant and the restaurant had been open for about eight months. Ms. Fulber was 28 years old. She was at the restaurant for about three hours before the accident, and during that three-hour period she drank three glasses of wine. About halfway through the three hours that she was in the restaurant, she went outside the premises to smoke a cigarette, and her route both going outside and returning to her table took her past the spot where she ultimately fell. [ 8 ] She was wearing high-heeled shoes with a stiletto heel four-and-a-half inches high and a plastic sole. Ms.

Fulber had purchased the shoes about six weeks before the accident. [ 9 ] The restaurant floor was hardwood and it was not waxed. There were places where there was decorative mosaic tile, but apparently not at the spot that Ms. Fulber fell.

[ 10 ] Ms. Fulber fell in an area near the bar and the bar servery. On my very rough estimate, it was about six feet from the servery part of the bar and about four feet from the edge of the bar, but those dimensions are not in evidence. There is a floor plan in evidence. [ 11 ] Ms. Fulber did not notice anything on the floor before she fell. Not surprisingly, she did not notice anything on the floor after she fell either. She did not notice anything on her shoes or her clothes and did not feel any dampness on her bare skin.

She deposed that she slipped on something, but from her answers on examination for discovery, it is clear that Ms. Fulber's belief is based on inferences which she has drawn, based essentially on the fact that she fell. [ 12 ] I will read Question 532 and part of 533: 532 Q I think you're telling me that you don't have any information to indicate there was a spill or any foreign substance; is that right?

A I'd -- yeah, I -- I feel that there was something there that I slipped on, but no I don't evidence to say that it was water or it was a lime wedge or it was juice or a drink or anything. 533 Q The reason you suspect is just because you slipped; is that right? A M'mm-hmm. Yeah … That is as much as I will read. [ 13 ] The evidence included an affidavit from a server named Ms. Walker, who served Ms. Fulber's party. I am just going to read quickly paragraphs 5 through 8: 5. I did not see Ms. Fulber fall, but I saw her on the ground afterwards.

I did not observe any spillage in the area of the Plaintiff's fall, either before or after she fell. 6. I traversed the area in which Ms. Fulber fell many times during my shift on the day of the accident, before the Plaintiff fell. I repeatedly walked through that area during my shift, multiple times per hour. 7. My practice while working at Browns was to constantly survey the floor for spills or debris and to clean up any spills immediately.

I was mindful of the state of the floor not only for the safety of customers, but also for my own safety as I traversed the floor frequently while carrying food and beverages. 8. If I had noticed a spill on the floor prior to or after Ms. Fulber's fall I would have cleaned it up immediately or called someone else to do so. [ 14 ] Mr. Rumpel, who is one of the owners of the restaurant, was the manager on duty that night. A bartender drew his attention to the fact that a woman had fallen and Mr. Rumpel went to Ms. Fulber's side. He crouched beside her.

His evidence is that he did not notice anything on the floor at that time, although he did not at that time do a close inspection. His evidence is that he did not see or feel any moisture or foreign material on Ms. Fulber's clothing or her person. [ 15 ] Mr. Rumpel helped Ms. Fulber outside and was assisted in doing that by Ms. Fulber's sister. [ 16 ] Plaintiff's counsel argued that there was a conflict in the evidence about how long Mr. Rumpel stayed outside with Ms. Fulber. Mr.

Rumpel estimated that he was outside with her about one-and-a-half minutes, but on examination for discovery he testified that it could have been longer and he did not have a stopwatch with him. In contrast, Ms. Fulber's evidence is that Mr. Rumpel stayed outside with her for five minutes. [ 17 ] Mr. Rumpel's evidence is that after he went outside with Ms. Fulber, he returned to the restaurant and crouched down and inspected the floor in the area of her fall and saw no spillage or any problem with the floor. Mr.

Rumpel deposed that he has not received any report from his staff or anyone else that there was a spill in the area of Ms. Fulber's fall. Mr. Rumpel also deposed that, to his knowledge, no one witnessed Ms. Fulber's fall. [ 18 ] The only evidence on this

summary trial application about Ms. Fulber's injuries is her evidence. She deposed that she has had three surgeries, one on the evening of the accident and two subsequently. The evidence also shows that there are metal pins in her ankles, that she has significantly reduced the amount of time she spends standing and running and jumping since the accident, and that she has daily pain. [ 19 ] I accept that Ms. Fulber's claim for non-pecuniary damages could well be in the range of $45,000 to $55,000 or more, and I also accept that she may have claims for the costs of future care and lost earning capacity.

In other words, I accept that Ms. Fulber suffered a significant injury in this fall. [ 20 ] Mr. Aiyadurai, counsel for Ms. Fulber, argued that a

summary trial was premature at this time. He argued that there should be further investigations concerning the number of people in the restaurant compared with its capacity, concerning whether anyone saw Ms. Fulber's fall, concerning Mr. Rumpel's credibility, and concerning the training of the workers at the restaurant. [ 21 ] The court's

summary trial procedure is designed to have cases decided on the basis of written evidence without the need for a full trial and the related expense and delay when that is appropriate. When one party applies for a

summary trial, if the other party seeks to pursue further investigations, that party should make those investigations or at least commence them prior to the

summary trial. [ 22 ] Now, in this case, Ms. Fulber's application response includes this paragraph 20: Further, there are identified parties who may be able to provide direct evidence of what caused the slip and fall. These parties include all

those who attended the Premises and all those who worked at the Premises on the night the plaintiff slipped and fell. These parties needto be interviewed, examined by way of discoveries, and/or called as witnesses to give viva voce evidence at a full trial. [23] Plaintiff's counsel conducted an examination for discovery of Mr. Rumpel in April 2013. Defence counsel had already advisedplaintiff's counsel that the defence would be applying for a

summary trial. Mr. Rumpel was asked the name of the bartender and gave thename. Mr. Rumpel was asked whether the bartender saw Ms. Fulber's fall and said that to his knowledge no one saw the fall. There weresome questions outstanding from Mr. Rumpel's examination for discovery and answers were provided by letter dated July 9, 2013. [24] Plaintiff's counsel has not apparently taken any steps to pursue evidence from the bartender or any other employees of therestaurant. The accident, as I have said, occurred about two and a half years ago.

There is simply no reason to think that there is someeyewitness out there who saw Ms. Fulber fall or who saw a substance on the floor in the area before she fell. [25] The parties disagree about whether Rumpel had a reasonable system in place to protect patrons from slipping and falling. It isnot necessary for me to make a finding about that. For the purposes of my analysis today, I will assume that Rumpel's systems wereunsatisfactory. [26] I am now going to refer to some law concerning what Ms.

Fulber must establish to obtain damages from Rumpel. [27] As lawyers know, this is not a situation where there is what we call strict liability, meaning a situation where an injured personis entitled to receive damages without proving fault. This is a case where an occupier's liability analysis applies. [28] A useful

summary of the law is set out in Wilde v. The Cambie Malone Corporation, 2008 BCSC 704. I acceptMs. McCullagh's

summary of that, and I am just going to read her

summary of some of the principles stated in the Wilde case: (

a) The goals of the Occupiers Liability Act are to promote positive action on the part of occupiers to make their premises reasonablysafe. (

b) The duty imposed by the Act is to take reasonable care in the circumstances to make the premises safe. The duty does not requireoccupiers to ensure that persons using the premises will be absolutely safe. (

c) The care that must be taken by an occupier differs according to the nature and use of the premises. (

d) The onus is on the plaintiff to prove on a balance of probabilities that the defendant breached this duty of care. The fact of injurydoes not create a presumption of negligence. The plaintiff must be able to point to some act or failure on the part of the defendant whichresulted in the injury. (

e) This duty of care does not extend so far as to require the defendant to remove every possibility of danger. The test is one ofreasonableness, not perfection. [29] I will also quote a statement in Bauman v. Stein, (BC CA), [1991] 78 D.L.R. (4th) 118. … the Occupiers Liability Act does not create a presumption of negligence against "the occupier of the premises" whenever a person isinjured on the premises. A plaintiff who invokes that

section must still be able to point to some act (or some failure to act) on the part ofthe occupier which caused the injury complained of before liability can be established. [30] I will quote from the decision of Mr. Justice Cohen in Van Slee v. Canada Safeway Limited, 2008 BCSC 107 [Van Slee], atparagraph 31. He wrote: [A] plaintiff must prove: first, what condition or hazard caused her slip and fall; and, second, that the condition or hazard existed due to abreach of duty by the defendant [31] I was referred to a number of authorities. I will refer to some of them. One is Charlie v.

Canada Safeway Limited; I was referredto both the trial decision and the Court of Appeal decision. The trial decision of Mr. Justice Parrett is indexed at 2010 BCSC 618 and theCourt of Appeal decision at 2011 BCCA 202. The case was a

summary trial application where a plaintiff's claim was dismissed. She fellnear a flower display in a Canada Safeway store. In the course of falling, she knocked over the display and so she noticed that she was ina puddle of water after the fall. [32] In that case, the Supreme Court decision was upheld and the Court of Appeal concluded that the plaintiff could not establish theexistence of water on the floor at the time she fell.

Therefore, she had not proven the existence of a hazard that caused her to slip and fall,and the Court of Appeal upheld the dismissal of her claim. [33] In Van Slee, again, a woman fell in a Canada Safeway store. She said in her affidavit that she was certain she must have slippedon water which had accumulated in front of the customer service desk. She said she had been outside in rainy weather, and that in factshe had been wearing a hood because of the extent of the rain.

In that case, the court concluded that she had not proven that there was ahazard of water which caused her to slip and fall, and her claim was dismissed. [34] The other case I want to refer to is Burnett v. Canada Safeway, [1983] B.C.J. No. 1073. In that case, the court drew theinference that there had been water on the floor from an employee spraying vegetables in the produce department. The court referred toevidence that water on the floor would not have been visible. In that case, the court did draw the inference that there was water on thefloor that caused the fall.

The plaintiff had been wearing what Madam Justice MacKenzie said at paragraph 5 women would term"sensible shoes", with a broad heel that was not excessively high. She was also pushing a grocery buggy that would have given her somesupport. [35] As a result of reviewing these cases, I am satisfied that, to succeed in claiming damages from Rumpel for the fall, Ms. Fulber

must demonstrate that there was a hazard on the floor, being either liquid or some other foreign substance, which caused her to slip, and also that Rumpel did not take reasonable steps to ensure that such a hazard would not exist. [ 36 ] I will now talk about some further areas of investigation that Mr. Aiyadurai suggested should be pursued. First, he talked about investigation of whether there were more patrons in the restaurant than legally permitted. He referred to a floor plan of the premises which set out the number of seats at about 107 or 109. Mr.

Rumpel was asked on examination for discovery about the occupancy and he testified that 150 people, including staff, were permitted. He testified that he could not know how many people were in the restaurant at the time of the accident. [ 37 ] I cannot see any basis for further investigation of this issue being required before resolving the

summary trial application. There was no suggestion that the number of people in the premises caused the accident. This is not a case where someone who was injured alleged that they were jostled by a crowd or something of that sort. Further investigations about the number of patrons in the premises will simply not establish what Ms. Fulber has to demonstrate, which was that there was a hazard on the floor which caused her to slip. [ 38 ] Next, Mr. Aiyadurai referred to further investigations of others who may have been on the premises that night. As I have said, Mr.

Rumpel deposed that he did not know of anyone who witnessed the accident. [ 39 ] I am going to pause here and refer to the arguments about credibility. Mr. Aiyadurai said that it would be necessary to cross- examine Mr. Rumpel. Mr. Rumpel had deposed that he was only outside with Ms. Fulber for a minute and a half, while she thought it was five minutes. I am not satisfied that that is a contradiction of the nature and type which suggests that Mr.

Rumpel's evidence should be rejected. [ 40 ] In fact, having seen his discovery evidence that he conceded it might have been longer than a minute and a half, I am not sure that there is a real contradiction. People's estimate of time, particularly when there has been an accident, is variable and I am not satisfied that there is a realistic concern about the credibility of Mr. Rumpel. [ 41 ] As I have said, Mr. Rumpel deposed that he did not know of anyone who witnessed the accident. The accident occurred about two-and-a-half years ago.

There is no reason to think that there is a witness out there who did not come forward and tell either Ms. Fulber or one of her companions or someone at the restaurant that they saw something. It is also remarkable that, if there had been something on the floor, it would not have been noticed in the period after Ms. Fulber left.

I believe the accident was around 10:00 or 10:30 at night, and it is my expectation that the restaurant was open later than that. [ 42 ] As is evident from the evidence of the server which I read aloud earlier, if one of the workers had noticed something on the floor, it would be surprising if they had not taken steps to clean it up - not only for the safety of other customers, but also for their own safety in carrying food and beverages. [ 43 ] There is no realistic basis to imagine that Ms.

Fulber would find a witness who either saw her fall or saw something on the floor just prior to her fall which would enable her to prove her claim. [ 44 ] Mr. Aiyadurai also referred to investigating the slip coefficient of the floor. The floor has apparently not changed since the restaurant opened. There was no suggestion that Ms. Fulber has retained an expert to examine this. There is no reason to think that an unwaxed wooden floor is unreasonably safe. This does not provide an adequate basis for adjourning the

summary trial application to permit Ms. Fulber to pursue the coefficient of slippage of the floor. [ 45 ] Mr. Aiyadurai suggested other avenues of investigation which would be directed to whether Rumpel had a system in place to protect from spills of liquids and other foreign substances. While one of the things that Ms. Fulber would have to prove to establish liability is that Rumpel did not have an adequate system in place, as I have said, Rumpel focuses its application on the absence of any evidence that there was a hazard on the floor which caused Ms. Fulber's fall.

As I have said, I was prepared, for the purposes of this analysis, to assume that it was an inadequate system. [ 46 ] After considering all of this, I am not satisfied that it is necessary to adjourn the

summary trial application to enable Ms. Fulber to make more investigations. There simply is no reasonable basis to think that she would find any helpful evidence. [ 47 ] I am able to find the facts necessary to decide the case and it would not be unjust to resolve the case now. [ 48 ] The evidence does not establish that there was any hazard on the floor that caused Ms. Fulber to fall, whether it was a liquid or another foreign substance. Neither does the evidence give rise to a reasonable inference that there was liquid or another foreign substance on the place that Ms.

Fulber fell. [ 49 ] While the place that she fell was relatively close to the bar, it was a matter of feet from the serving area. It is highly unlikely that a drink would slosh all the way from the serving area to that area on the floor. While it may be possible that there have been times that some liquid has fallen in the place where Ms. Fulber fell, on all the evidence I must conclude that there was not a hazard in the place where Ms. Fulber fell. [ 50 ] As a result, I must allow Rumpel's application. I find that Ms.

Fulber has failed to establish that Rumpel is liable for the injuries from the fall and I must dismiss her claim. [ 51 ] Rumpel is entitled to its costs. “Gray J.”