2018 QCCQ 3998, 2018 QCCQ 3998

Cavuoti c. Spa Renaissance inc. 2018 QCCQ 3998 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC TOWN OF MONTREAL Civil Division No: 500-32-154160-164 DATE: May 11, 2018 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ LIBERA CAVUOTI Plaintiff v. SPA RENAISSANCE INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Libera Cavuoti, sues Spa Renaissance Inc. (“Spa Renaissance”) in connection with an alleged accident of January 24, 2016. In the midafternoon on that date Ms Cavuoti was present at the Spa situated on St Hubert Street in Montreal.

She had an appointment with a massage therapist working at the Spa. [ 2 ] Before the massage, she was welcomed by the receptionist and told to take a sauna. [ 3 ] She alleges that when she went into the sauna and turned to sit on the bench, she suffered a burn when her backside touched the electric grill. [ 4 ] She claims the amount of $10,000.00 as damages relating to her alleged injury, burns to her left gluteal region. [ 5 ] Spa Renaissance contests the claim, denying that the incident occurred. [ 6 ] Subsidiary, Spa Renaissance brought evidence with a view to proving that the sauna installation complied with applicable standards and did not represent a danger to a normally prudent user.

Issues [ 7 ] The Court must determine whether the Plaintiff, Ms Cavuoti, has established, through a preponderance of evidence: 1. that she suffered the injury at Spa Renaissance the day in question ; 2. that the injury resulted from fault on the part of the operators of the Spa Renaissance ; 3. and, if the answer to the above two questions is in the affirmative, what is the just quantification of her prejudice? Factual material [ 8 ] Ms Cavuoti was a regular custumer of Spa Renaissance where she obtained the services of a massage therapist.

She stated in her testimony that, when she arrived on January 24, 2016 for her appointment, the receptionist invited her to have a sauna.

She was somewhat familiar with the sauna, having used it at least on one occasion, and she preferred the other sauna, which was heated by infrared rather than by a heating element. [ 9 ] The sauna she was told to use has an electric heating apparatus, a small box-shaped heater encased in metal, open at the top with a grill allowing the heat to flow upwards. [ 10 ] The heater is placed against a wooden bench on which the user sits and is just to the left of the entrance door. [ 11 ] Typically, the user would enter from the door and take a seat on the bench without touching the heater.

The top edge of the heater is approximately 28 inches from the floor and the top of the grill is approximately 38 inches from the floor. According to Anthony Leylekian, a technician with the firm who installed the apparatus, it is a custom-built sauna that was approximately four years old at the time of the accident. The witness believes that the sauna was installed in compliance with applicable standards. [ 12 ] Ms Cavuoti states that when she entered the door and turned in order to take a seat, she realized that her buttock touched a hot surface which she perceived to be the grill of the electric heater.

She spoke to the receptionist and, later when she met the massage

therapist, she showed him where she was burned. [ 13 ] She wrote up a document and had the massage therapist, Boris Babizhaev, countersign it. The text reads “J’ai marchais dans le sauna et en me tournant, je ma fesse droite a touché au calorifère. J’ai immediatement appelé quel qu’un et M. a constaté ma brûlure” [sic]. [ 14 ] M.

Babizhaev states in his testimony Ms Cavuoti showed him the red spots and stated to him that, when she entered the sauna and turned, her buttock touched the grill and, that she was not wearing a towel or a robe. [ 15 ] Later that day, Ms Cavuoti went to the emergency department at the Fleury Hospital “CSSSAM-N HOP, FLEURY”.

The report of her visit establishes that the attending physician observed “scars post burn R gluteal region…”. [ 16 ] The diagram drawn by the physician shows three linear marks toward the outside edge of the right buttock. [ 17 ] The report clearly indicates that it is a first-degree burn, although the document appears to have an annotation that the burn is “probably a second degree burn not first as first degree burns does not leaves scars”.

This appears to be a note of the physician. [ 18 ] The Plaintiff was prescribed Polysporin and the plan indicating by the physician included “watchful waiting” for six month with an evaluation thereafter to discuss whether a non RAMQ aesthetic correction would be appropriate. [ 19 ] The Plaintiff speaks of a contemplated laser treatment which, it was determined, was not needed as by the summer of 2017, there was no longer any scar. [ 20 ] She complains, essentially, of the initial discomfort and the manner in which the receptionist minimized the event.

She complains of insomnia and psychological effects of the incident. [ 21 ] The Court heard testimony about the configuration of the sauna and viewed pictures. [ 22 ] The sauna is an extremely restricted space, as often saunas are, and the space would have been somewhat difficult for the Plaintiff to maneuver in as she is of above average weight, approximately 210lb, for a height of 5’ 4” according to a document prepared by the massage therapist [1] . [ 23 ] Spa Renaissance established through testimonial evidence that it had never had an incident of burning in its saunas.

The Court retains from this testimony and from the testimony of the technician, that the operators of the spa feel it would be rather difficult for someone to make contact with the grill portions of the apparatus unless it was done deliberately or without taking care. [ 24 ] It is relevant, as well, that the Plaintiff had taken off her robe or towel so that the skin of the sensitive area of her body was exposed.

Analysis [ 25 ] Spa Renaissance has the obligation to take the appropriate means to provide a safe environment for its customers. [ 26 ] The Spa does not have an obligation of result nor that of an insurer of a customer who may suffer an accident.

The Spa is only liable if its fault can be established as well as a causal connection between that fault and a prejudice occurring to its customer. [ 27 ] The type of heating apparatus in the spa in question represents a risk to a user if the user comes in contact with hot surfaces that are at the top, from which the heat emanates. [ 28 ] The Court learned that the air in the sauna is deliberately kept at 90°C and that the apparatus is shielded by a metal casing all around and in the area that is adjacent to walls there is an additional heat shield that is visible in the pictures [2] . [ 29 ] There are hot rocks at the top that are held in place by the shield and a grill over the entire surface where rocks are exposed, such that an object will not fall on them. [ 30 ] The areas that could radiate heat are between 29 and 38 inches from the floor level.

The area where a user would sit on the bench is such that the user could come into contact with the shielding casing of the heater but not with the areas that are open and which could be hot to the touch. [ 31 ] Spa Rennaissance denies that the burns from which the Plaintiff suffered occurred at their spa but the Court believes that it is more probable than not that the Plaintiff suffered the burn when she turned in the space to take a seat, as she states. [ 32 ] It is quite possible that her backside touched the part of the grill that is horizontal and close to the entrance door, as it is not too high for this part of her body to have reached there. [ 33 ] The average person would not be in a situation of danger because of this installation because the potentially dangerous aspects of the installation are visible; a user would be careful not the come into contact with the surfaces of the heating apparatus that are not shielded. [ 34 ] The Plaintiff however, was in a very particular situation.

Her testimony establishes that she was reluctant to enter this sauna, but was urged to use it rather than the infrared sauna that she preferred. While the top of the heater, at 38 inches, might be too high for users to contact with their seat unless they did so deliberately, the parts of the grill that are horizontal are seven inches lower, closer to 30 inches, which is compatible with the place on Ms Cavuoti’s backside where the burn occurred. [ 35 ] The allegation is made that the receptionist was impolite or rude and insensitive towards the Plaintiff. This aspect of the

narrative is rather subjective.

However the part of the narrative that shows an objective lack of care on the part of the Spa is that the Plaintiff was not only invited, but also urged, against her own preference to use the sauna. [ 36 ] The Plaintiff is a person of above average size and, to an objective spa attendant, not a person who would be particularly agile. [ 37 ] She was in need of some assistance or some warning in using this spa where, because of her size and shape, it was difficult for her to maneuver with ease. [ 38 ] A person who is in good physical condition and freely accepts the risks of using the sauna in a facility that does not provide supervision cannot claim damages unless the risk of danger is hidden such that there is a “trap”. [ 39 ] The sauna does not have the characteristics of a trap for the average person who uses it of her own volition, but in the present case, the intervention of the Spa’s employee by insisting that she use the spa despite her reluctance, without any particular warning or guidance, constitutes a fault given the nature of the contract.

After all, the essence of the contract was to provide services for the health and wellbeing of the customer. In the case of a customer such as the Plaintiff, this required a certain amount of assistance and consideration from the person in attendance. [ 40 ] That customer’s particular size, feelings and preferences should have been taken into account before she was invited to assume the risks of entering a sauna. [ 41 ] There is no contradiction about Ms Cavuoti’s testimony about the involvement of the receptionist because she was not present at the hearing.

She was the only person who would have been in the position to contradict Ms Cavuoti’s testimony in this regard. [ 42 ] Antonina Protsenko, the mother of the director of the premises, Alexandre Protsenko, testified that she saw Ms Cavuoti in the hallway after the event, wearing only a towel and that she mentioned having been burned and that it would cost the business 12 000,00 $.

Apart from that, she was unable to give any details of the event. [ 43 ] Boris Babizhaev testified that he received a phone call from the Plaintiff a few weeks before the trial during which the Plaintiff told him that, if she won she would share the amount of the award. [ 44 ] Ms Cavuoti admits having spoken to Mr Babizhaev to insure that he would attend the hearing but denies having spoken about the possibility of sharing the proceeds. [ 45 ] The testimony given by Mr Babizhaev is not reliable, however, because he was prompted to give the answer by a suggestive question proposed by his former employer, Alexander Protsenko. [ 46 ] The Court did its best to question him in a non-suggestive manner but the witness, fairly conversed in English, would have understood what was being suggested to him and influenced to answer the question affirmatively. [ 47 ] The witness admitted being easily pressured.

That’s the excuse he gave for signing the statement that Ms Cavuoti wrote of the event [3] . [ 48 ] While he states that did not understand French, he confirmed that the content of the document, a brief narrative of the event, was explained to him. He says he signed it under pressure because he was in a hurry to see another customer. [ 49 ] In the Court’s view, the testimony by the opposing parties, Antonina Protsenko, to the effect that the Plaintiff warned of a lawsuit and the testimony of Boris Babizhaev, to the effect that she tried to influence his testimony, are not credible and reliable.

Quantification of damages [ 50 ] The minor burn suffered left red marks that persisted for several months but did not require any cosmetic surgery. [ 51 ] The pain of a first-degree burn or even a mild second-degree burn without blisters is short-lived. [ 52 ] The Plaintiff, despite the incident, underwent a massage immediately without complaint and only went to the hospital a few hours later.

She testified that she had discomfort for a few months and suffered from insomnia. [ 53 ] In the Court’s estimation, there is no probative evidence that the Plaintiff suffered anything other than minor pain and discomfort because of the burn. Insomnia could be related to any number of physical and psychological factors and there is no probative evidence that it was related particularly to his incident. [ 54 ] There is a case for moral damages associated with the incident causing the burn and the injury itself, but not for the Spa’s treatment of her afterward.

She continued to frequent the Spa and it appears to the Court that the claim is more a question of principle than being required because a high degree of moral prejudice. [ 55 ] Even so, the Plaintiff is entitled to compensation for the injury itself and the resulting pain and discomfort. She claims $ 10,000. The Court has both the duty and the discretion to arbitrate a reasonable amount where it is not possible to quantify the prejudice precisely. [ 56 ] The Court finds the amount of $ 1,000.00 to be the appropriate compensation in this matter.

FOR THESE REASONS, THE COURT: [ 57 ] CONDEMNS the Defendant to pay to the Plaintiff the amount of $ 1.000,00, together with interest at the legal rate of 5% per annum together with the additional indemnity provided by

article 1619 of the Civil Code of Quebec calculated from July 30, 2016.

__________________________________ David L. Cameron, J.C.Q. Date of hearing: December 5, 2017