2013 QCCQ 5673, 2013 QCCQ 5673

Friefield c. Loblaws inc. 2013 QCCQ 5673 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-124338-106 DATE: May 30, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ OSCAR FRIEFIELD […], Montréal (QC) […] Plaintiff v.

LOBLAWS INC. 22, Avenue St-Clair East, suite 1901, Toronto (ON) M4T 2S7 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Oscar Friefield is claiming $7,000 from Loblaws inc. after he was trapped in Loblaw’s elevator and suffered stress and damage to his foot from banging to obtain help. [ 2 ] Loblaws denies responsibility and called Schindler Ascenseur Corp in warranty. Schindler, although duly convened, did not appear at the hearing.

The evidence : [ 3 ] On July 29, 2007 at approximately 5:30 p.m., Mr. Friefield entered an elevator at Loblaws, in N.D.G., Montreal. A power outage occurred and he became trapped in the elevator for forty minutes. Although the elevator was equipped with a communication system, it was not working. [ 4 ] Unable to contact anyone by screaming or pounding on the door, Mr. Friefield, who suffers from atrial fibrillation condition, panicked. He then lay down on his back and began kicking the door with his feet. [ 5 ] Finally, someone heard the noise he made and called the fire department.

The firemen arrived 20 minutes later and Mr. Friefield was released. He left the premises, having refused an offer by Loblaws to call an ambulance. [ 6 ] About a week later, Mr. Friefield consulted Dr. Kalin for pain in his right foot and underwent 3 physiotherapy courses. His pain has persisted and he needs to use a cane when he walks. [ 7 ] Loblaws denies responsibility. It claims the elevator was not working because of a loss of power in the area. As for the defective communication system, it submits it has a maintenance contract with Schindler Ascenseur Corp..

It considers Schlinder responsible for the proper working of its equipment. After the incident, Loblaws installed emergency buttons, connected to its security operators. Analysis:

a) Damages:

[ 8 ] Mr. Friefield is claiming damages for the stress he suffered during his entrapment in the elevator, invoking his cardiac arrhythmia. He is also claiming damages for the injury he sustained to his right foot. [ 9 ] Mr. Friefield suffers from a cardiac condition. According to Dr. Edward Adelson, Mr. Friefield must avoid any stress. Dr. Charles Gomberg indicated that stress and anxiety may exacerbate his cardiac arrhythmia and his concern over the danger of stroke . [ 10 ] The experience Mr. Friefield suffered was, no doubt, frightening. He was locked in an elevator and no one responded to his calls for help.

He was unable to use the communication system and panicked. Given his heart condition, he feared his situation would be fatal. [ 11 ] While there is no evidence as to further damage to his heart as a result of the incident, he nevertheless suffered a great deal of undue fear and stress. In such circumstances, the Court considers that he is entitled to compensation. However, given that the situation lasted only 40 minutes and since no further permanent damage was established as a result of the incident, the Court, in its discretion, limits the award of damages to $500. [ 12 ] Mr.

Friefield is also claiming damages for the pain he bears in his foot. He presented a report from Dr Joyce Johansson, which states, in part, as follows: The patient has sought treatment for his right foot strain on many occasions since (sic), has had 3 courses of physio and has worn arch’ supports with some improvement. The patient still has persistent right foot calcanio-cubord joint pain and swelling with weight bearing. The patient also had persistent pes planus. This is now a permanent condition as it is unchanged since 2007. The patient will need custom molded plantar orthodics on a permanent basis.

DX: Bilateral pes planus, right foot calcanio-cuboid chronic synovitis and early osteo arthritis with sequillae (i.e. persistent pain + swelling right foot). [ 13 ] The injury to Mr. Friefield’s right foot is permanent. He suffers from pain and swelling and needs the support of a cane when walking. He submits his injury resulted from banging on the elevator door with his foot when he was unable to contact anyone outside the elevator. [ 14 ] The Court recognizes that Mr. Friefield suffered physical damage following the breakdown of the elevator.

However, to award compensation, the damages must be an immediate and direct consequence of the fault that occurred. [ 15 ] Although the elevator stopped moving and the communication system was not working, clearly someone would have come to Mr. Friefield’s assistance in due time. Rather than waiting for help, Mr. Friefield lay down and began kicking the door with his foot, which led to his subsequent injury. [ 16 ] The Court does not consider the prejudice he suffered stemmed directly from the communication system’s lack of functioning.

The damage occurred on the occasion of the system’s dysfunction but it was not a direct result of the communication system’s breakdown. [ 17 ] As already indicated, Mr. Friefield could have waited for assistance. Furthermore, others, in the same situation, would not necessarily have kicked the door until they sustained injury. [ 18 ] Since compensation is awarded only for direct damages, the Court concludes that Mr.

Friefield is not entitled to an indemnity for the damage he suffered to his foot. [ 19 ] He has also claimed various expenses related to legal and medical bills, transportation, cost of his demand letter, physiotherapy, orthopaedic shoes, etc.. [ 20 ] In light of the Court’s conclusions, the Court limits the above mentioned damages to the cost of Dr. Gomberg’s medical report, Mr. Friefield’s travel expenses, faxes and transmission of his demand letter for a total of $111.35. Since the Court is not granting an indemnity for the damage to Mr.

Friefield’s foot, the related costs for orthopaedic shoes and physiotherapy are not granted. Legal costs are not awarded, except to abuse of procedure, which is not the case in this instance.

b) Responsibility: [ 21 ] Mr. Friefield was using an elevator on Loblaw’s premises. Loblaws is responsible for its equipment and is therefore responsible for the damages suffered by Mr. Friefield. [ 22 ] Loblaw’s has called Schindler in warranty, invoking the maintenance contract it has with this company. [ 23 ] The functioning of the elevator and its accessories are the responsibility of Schindler, which in virtue of a maintenance contract had the obligation of assuring that the elevator and its parts are in proper working order.

The contract it concluded with Provigo Distribution Inc., now Loblaws, began on December 1, 2003 for a one year period. The clause regarding the renewal of the contract was crossed out. [ 24 ] However, Loblaws provided an e-mail from Ms. Dalati of Schindlers, dated August 24, 2010 in which Schindler admits that the above mentioned contract was subsequently renewed from year to year. [ 25 ] Schindler is responsible for the functioning of the elevator and its accessories.

Given that an essential component, namely the communication system, failed to function when it was needed, the Court finds Schindler liable for the damages suffered by Mr. Friefield.

FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff’s action; CONDEMNS Loblaws inc. to pay Oscar Friefiled $611,35 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since July 21, 2010, plus judicial fees of $159. GRANTS the action in warranty; CONDEMNS Schindler Ascenseur Corp. to pay Loblaws inc. the compensation to which Loblaws is condemned to pay. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: April 9, 2013