2010 QCCQ 11627, 2010 QCCQ 11627

Sherman c. 9125-1793 Québec inc. 2010 QCCQ 11627 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-113107-082 DATE: December 9, 2010 ______________________________________________________________________ BY THE HONOURABLE JULIE VEILLEUX, Q.C.J. ______________________________________________________________________ HEATHER SHERMAN Plaintiff v. 9125-1793 QUEBEC INC. BOUTIQUE FELLINI INC.

DEMERS ZAJAC VENA LA CAPITALE ASSURANCES GÉNÉRALES (a/s Alain Huneault) Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims an amount of $7,000.00 following a fall at Boutique Fellini Inc. ( Fellini ) on October 14, 2007.

CONTEXT [ 2 ] Plaintiff, her husband and two of their friends, a couple, were shopping on Sherbrooke Street on October 14, 2007 and decided to go to Fellini, which is located below the street level. [ 3 ] Plaintiff went down the few steps which lead to the commerce and she fell after the last step, as her right foot hit a drain located on the carpeted floor located just near the entrance. At the time, she was wearing flat low heel leather shoes. Plaintiff’s girlfriend was just in front of her when she was going down the stairs and she did not see Plaintiff fall.

However, she noticed the drain when she helped Plaintiff after her fall. Plaintiff’s husband remembers that Plaintiff had reached the bottom of the stairs when she fell and twisted her right foot. [ 4 ] Plaintiff and her witnesses noticed a small circle drain at the bottom of the stairs. The drain was not covered and could be seen easily although there were debris such as dead leaves on the bottom of the stairs. [ 5 ] Fellini’s representative, Mrs.

Barriman, was standing close to the door when Plaintiff came down and she saw her tripping on the last step, before reaching the bottom of the stairs. [ 6 ] All of the witnesses explained that Plaintiff was taken inside Fellini and rested for a few minutes where she seemed to undergo pain which is qualified as extreme by her husband and light by Mrs. Barriman. [ 7 ] Plaintiff got back home and stayed there resting for a couple of days after which she went to the medical clinic to find out that her right side metatarsal was broken.

She was prescribed a walking boot and crutches which she used for approximately two-and-a- half months, after which she underwent three or four physiotherapy treatments. By the end of January, she was walking with a cane, wearing wide and soft shoes. [ 8 ] Although Plaintiff did not suffer any loss of income, she claims for the pain and suffering together with medical expenses such as the walking boot, physiotherapy treatments, X-rays and medical report.

Plaintiff retained the services of an attorney who exchanged letters with Fellini and 9125-1793, the owner of the building rented by Fellini. [ 9 ] The insurer of the owner retained the services of insurance adjusters Demers Zajac Vena who investigated Plaintiff’s claim and denied liability on the basis that the drain at the bottom of the stairs was covered with dead leaves according to the version given to them by Plaintiff during the investigation.

Considering that it is Fellini’s responsibility to clean the entrance of the rented premises, the owner had no liability in this claim. [ 10 ] La Capitale Compagnie d’Assurances is the insurer of Fellini and was informed of the incident several months after it took place, and therefore was not in a position to investigate the location of the drain and its aspect considering that construction work was done at the bottom of the stairs prior to his involvement in this file.

ANALYSIS [ 11 ] Plaintiff has the burden of establishing, by preponderant proof, that one of the defendants was negligent and that due to this negligence, she suffered damages as per

section 1457 of the Civil Code of Quebec which reads as follows: 1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody. [ 12 ] In the present case, the preponderant proof can be summarized as follows: - Plaintiff was wearing flat low heel leather shoes on October 14, 2007; - Plaintiff fell after reaching the bottom of the stairs located near the entrance of Fellini; - the drain located at the bottom of the stairs was not covered with leaves at the time of the accident; - Plaintiff was in pain for a few days and suffered inconveniences for a two-and-a-half month period after which she began rehabilitation; - Plaintiff did not suffer loss of income. [ 13 ] The Court finds that considering the proof offered, Plaintiff neglected to establish a fault on the part of one of the defendants.

The drain located at the bottom of the stairs is possibly the cause of her fall but said drain was not covered and could be seen easily. It cannot be considered as a trap considering, namely, that Plaintiff’s shoes could not get stuck in the drain. Therefore, the Court finds no liability on the part of the defendants. [ 14 ] In view of the foregoing and although the Court is sympathetic to Plaintiff’s case, it must dismiss her claim but will do so without costs. FOR THESE REASONS, THE COURT: DISMISSES Plaintiff’s claim, without costs. __________________________________ JULIE VEILLEUX, Q.C.Q.

Date of hearing: November 30, 2010