2012 QCCQ 14393, 2012 QCCQ 14393

St. Louis c. Supermarché Pagano, Shnaidman inc. (IGA) 2012 QCCQ 14393 COURT OF QUÉBEC « Small Claims Division » CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division » N° : 500-32-123306-104 DATE : DECEMBER 13, 2012 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ ELIZABETH ST. LOUIS Plaintiff v. SUPERMARCHÉ PAGANO, SHNAIDMAN INC., f.a.s.n.

IGA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $3,050 for expenses incurred, pain and inconveniences suffered following a fall which occurred at Defendant’s. THE CONTEXT [ 2 ] On Friday, July 24, 2009, at approximately 9-9:30 a.m., Plaintiff goes to Defendant to return cans and run some errands. As she was walking near the deli counter, she lost footing of her right foot and then of her left foot due to water on the floor.

According to Plaintiff, July 24, 2009 was a cloudy summer day with no precipitations. Plaintiff was then wearing "C rocs ", rubber low-heel sandals. [ 3 ] Plaintiff remembers noticing small puddles of water in the area where she fell as she stayed on the floor a few minutes.

She finally got up and noticed that her skirt was wet. [ 4 ] Defendant’s employees came over to help her and offered to call an ambulance but she declined, considering that although she felt pain in her knee and her thigh, she did not need an ambulance. [ 5 ] After a fifteen minute rest, she walked out of Defendant’s and called a taxi to get home. She took Tylenol for pain and put ice on her left thigh and right knee, anticipating bruises in the following hours. [ 6 ] She tried to make an appointment with her family doctor, but finally went to the walk-in clinic near her home on the next Monday.

At that point, she was examined by Dr Gorin who wrote a note to keep her away from work for two weeks. She was also prescribed anti- inflammatory together with physiotherapy on a short-term basis considering the nature of her wounds: torn muscles. [ 7 ] Plaintiff returned to work approximately two weeks after her fall and attended physiotherapy at Kinatex from July until October 2009 on a regular basis. She was unable to go fishing, do her gardening, go cycling and attend yoga class for one month.

She still suffers spasms from time to time and remains limited as far as some activities are concerned, like cycling. [ 8 ] Plaintiff sent Defendant a letter of default on December 14, 2009, claiming medical costs ($1,050) and pain and suffering ($2,000). [ 9 ] Defendant’s insurer, Royal Sun Alliance, mandated claims adjustor Roy Guertin to investigate Plaintiff’s claim. It is to be noted that Mr. Guertin met with Plaintiff on September 10, 2009 in order to obtain her statement. Said statement is filed into the Court record and is a

summary of the version given by Plaintiff at the hearing. [ 10 ] Mrs. Polletta, who has worked for Defendant since 2000, was at Defendant’s on July 24, 2009. She recalls an employee calling her after a client had fallen. She went near the deli counter where Plaintiff fell and offered to call an ambulance. She testifies that there was a small amount of water on the floor near Plaintiff and expresses her surprise considering that the maintenance checks the floor every hour. If there is a spill in the store, the floor is mopped and a sign is installed to notify customers. [ 11 ] Mrs.

Polletta usually files an accident report when an accident happens, but did not do so considering that Plaintiff had declined her offer to call an ambulance. [ 12 ] Mrs. Borenstein, who also worked at Defendant at the relevant time, helped Plaintiff after her fall. She confirms seeing a small amount of water on the floor, a leak from the refrigerator, but has no recollection of Plaintiff’s clothing being wet. [ 13 ] According to Defendant, the sweeping log filed into the Court record shows Defendant’s behaviour and constant concern for safety.

Said sweeping log contains handwritten notes at 8:10 and 10:21 on the morning of July 24, 2009. Plaintiff’s fall has occurred at approximately 9:30 a.m.

ANALYSIS [ 14 ] Plaintiff has the onus of demonstrating Defendant’s fault and that the damages she suffered resulted from said fault.

Section 1457 C.c.Q . 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. [ 15 ] The proof offered at the hearing convinces the Court that Plaintiff fell on a small amount of water near the deli counter at Defendant’s on July 24, 2009.

Although Defendant claims that it was not negligent, the Court has to bear in mind the fact that the sweeping log shows no notes between 8:10 a.m. and 10:21 a.m. on the day of the accident, period during which Plaintiff’s fall occurred. [ 16 ] Considering said proof and the absence of sign indicating " WET FLOOR " , the Court comes to the conclusion that Plaintiff has demonstrated Defendant’s fault as it failed to provide her with a dry and safe floor as she was running her errands.

There is no indication whatsoever that Plaintiff contributed to her fall. [ 17 ] The Court grants Plaintiff’s claim for medical costs ($1,050) considering the documentary proof offered at the hearing. [ 18 ] As far as pain, suffering and loss of enjoyment of life, the Court concludes that although Plaintiff suffers from spasms from time to time, her inactivity was temporary and lasted between four to twelve weeks, depending on the activity and her pain was acute for two to three weeks. In view of the foregoing, the Court grants Plaintiff an amount of $1,500 for pain, suffering and loss of enjoyment of life.

FOR THOSE REASONS, THE COURT: GRANTS in part Elizabeth St.Louis’s claim against Supermarché Pagano, Shnaidman inc., f.a.s.n. IGA; CONDEMNS Supermarché Pagano, Shnaidman inc., f.a.s.n. IGA to pay Elizabeth St.Louis an amount of $2,550 with interest at the legal rate and the additional indemnity as per

Section 1619 C.c.Q . as of December 14, 2009; THE WHOLE, with costs ($129). __________________________________ JULIE VEILLEUX, J.C.Q. Date of hearing : December 6, 2012