2012 QCCQ 4746, 2012 QCCQ 4746

Caruso c. Salle de quilles Spot ltée (Quilles G Plus) 2012 QCCQ 4746 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-117371-098 DATE: September 14, 2012 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ CAROLINA CARUSO […], Lasalle, Québec […] Plaintiff v. SALLE DE QUILLE SPOT LTÉE , doing business as Quilles G Plus 1277 boul.

Shevchenko, Lasalle, Québec H8N 1N8 -and- AVIVA CANADA INC. 630, René-Lévesque ouest, suite 900, Montréal, Québec H3B 1S6 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Carolina Caruso is claiming $7,000 following an accident she suffered at Salle de Quille Spot Ltée, doing business as Quilles G Plus (Salle de Quille). Salle de Quille denies the claim. Aviva, the insurance company of Salle de Quille, denies the responsability of Salle de Quille. The evidence: [ 2 ] Mrs.

Caruso regularly bowled in a league at Salle de Quille and has been active in this sport for approximately 30 years. On November 14, 2006, she and other team members noticed the floor was very slippery, more so than usual. [ 3 ] According to Mrs. Caruso, the league's president approached Mr. Bédard, the mechanic working for Salle de Quille, at the end of the first game, complaining that the course had viscosity on it. The President was told that everything was all right; he relayed the message to the league members and they continued to play. [ 4 ] Mr.

Bédard claimed he was approached before the game began; he took a clean cloth and wiped the course where the members were playing. He considered the conditions ideal for playing. [ 5 ] During the second game, Mrs. Caruso prepared to throw the ball but instead of stopping at the foul line as she always did, she slid three feet past the line into the alley because the floor was so greasy. She fell onto her back; her neck hit the floor and her teeth were shattered. She was taken by ambulance to Verdun Hospital. She underwent physiotherapy and dental work.

Her medical certificates provided for an absence from work until January 12, 2007.

[ 6 ] Salle de Quille's administrator and Mr. Bédard, the mechanic, maintain that the alleys are oiled by means of a machine, which stops at the foul line; oil is never put on the course. The system is equipped with an automatic ball cleaner to remove grease from the balls. According to Mr. Bédard, there is always a rag on the ball return, such that it is impossible to have oil on the course. He also maintained the alleys are oiled in the morning and not at night. [ 7 ] Both Mrs. Caruso and another member, Mrs. Tavone, claimed there were no towels on the ball return to remove grease from the balls.

As a result, grease fell on the floor. Mrs. Tavone also saw someone spraying the alleys that evening. Analysis:

a) Responsibility: [ 8 ] Plaintiff must not only establish his or her damages but must also establish that Defendant committed a fault and show a tie between the two. [ 9 ] Mrs. Caruso is an experienced bowler. She plays regularly and was wearing appropriate bowling shoes on the evening of her accident. There is no indication that she acted negligently or differently on November 14th from any other evening when she bowled. [ 10 ] The preponderant evidence reveals that the course was greasy when the accident took place and the situation was brought to the attention of one of Salle de Quille's staff members.

While this staff member claims he wiped the course before the game began, such that there no longer was a problem, according to the preponderant evidence of several players, the course was extremely slippery. [ 11 ] The Court concludes that Mrs. Caruso suffered a fall because the course was more slippery than usual due to the amount of grease on the surface. Given that Salle de Quille oils the course and is responsible for the maintenance of its premises, the Court finds that it is liable for the damages suffered by Mrs. Caruso.

The Court notes that Aviva has undertaken to pay the resulting damages if Salle de Quille is condemned.

b) Damages: [ 12 ] Mrs. Caruso is claiming damages of $7,000 for her injuries, incapacities, wage loss and expenses incurred, as indicated below. She reduced her claim to come within the jurisdiction of the Court of Quebec. Ambulance: $138.20 Physiotherapy sessions: $1,320 Dental fees: $8,161. Parking meters for physiotherapy sessions $293.07 Dry cleaners for clothes covered with oil: $8.95 Registered mail: $8.60 and $18.15 Medication: $927.65 Photocopies: $319.48 Expenditure of personal savings $42,799 Cashed shares: $1,365. Legal fees: $338 [ 13 ] In her written proceedings Mrs.

Caruso also claimed damages for permanent injury; neck and back supports; medical tests; incapacity to carry out home maintenance; the loss of an opportunity to obtain a management position; emotional, physical, and mental damage; time spent at employment office; etc.. She estimates her total loss at $56,767.39. The Court considers the estimated loss to be exaggerated. [ 14 ] The medical report of Dr. Kornacki indicates that Mrs. Caruso suffered injuries, from her accident, to her back, neck, head, left leg, right elbow and fractured teeth. She underwent physiotherapy for four months.

She was treated with anti-inflammatory medication. An examination the following year indicates a slight residual haematoma in her left leg, but no permanent incapacity. [ 15 ] Mrs. Caruso's claim for legal fees comes to $338.63. The Court does not grant compensation for such costs in the absence of abuse of procedure. Given that this is not the case in this action, no compensation is awarded for the legal fees incurred. [ 16 ] Mrs. Caruso is claiming $927.65 for medication. She presented a list of multiple medications prescribed by different physicians.

There is no indication as to the purpose of the medication and whether it is related to the accident or to a personal condition. Her medical report indicates that she was only treated with anti-inflammatory medication and the particular medication prescribed was not identified. Therefore, no compensation can be granted for this item. [ 17 ] Mrs. Caruso is claiming $293.07 for parking costs. She included a $65 receipt for a bus pass plus the cost of gas. Several parking receipts she provided are undated, while for others, no reason is given for the receipt.

The Court denies the cost of a bus pass which is not related to the accident, as well as gas and trips to see a lawyer. The amount granted is limited to $115. [ 18 ] The claim for photocopying comes to $319.48. The receipts produced amount to $67.56. This latter amount is granted. [ 19 ] As for other items, based on the evidence submitted, the Court grants compensation for the following: Ambulance fees of $138.20; Physiotherapy costs of $1,210; $8.95 for dry cleaning and $26.75 for registered mail. [ 20 ] As for Mrs.

Caruso's dental fees, she is claiming $8,161 based on a predetermination of dental treatment by Dr Manta. However, no expertise has been provided nor any explanation as to the work to be done. Mrs. Caruso had one tooth treated and a crown was placed on the tooth. The billing for this work comes to $1,076. This sum is allowed. [ 21 ] Mrs. Caruso is claiming the expenditure of personal savings of $42,799 plus the sum of $1,363 for cashed shares. There is no evidence as to how this money was used. The Court denies compensation for these sums. However, Mrs. Caruso was unable to return to work for three months.

Her weekly net salary was $287.

The loss for a three-month period comes to $3,444, which is granted. [ 22 ] Accordingly the following sums are granted and are payable by Defendant Salle de Quille Spot Ltée, doing business under the name of Quilles G Plus: Ambulance $115.00 Physiotherapy $1,210.00 Dental $1,076.00 Loss of salary $3,444.00 Parking $ 115.00 Photocopies $ 67.56 Dry cleaning $ 8.95 Registered mail $ 26.75 Total: $6,086.46 FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action; CONDEMNS Defendants, Salle de Quille Spot Ltée doing business as Quilles G Plus and Aviva Canada inc., solidarily to pay Plaintiff, Carolina Caruso, the sum of 6 086.46 $ plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since the institution of her action plus judicial fees of $157. __________________________________ SUZANNE HANDMAN, J.C.Q.

Dates of hearing: October 24, 2011 and May 26, 2012