2016 QCCQ 10491, 2016 QCCQ 10491

Koechling c. Hôpital de LaSalle 2016 QCCQ 10491 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-148063-151 DATE: September 12, 2016 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ GUSTAV KOECHLING Plaintiff vs.

HÔPITAL DE LASALLE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On November 18, 2013, coming out from the LaSalle Hospital (the « Hospital ») after having underwent a surgery on the right eye, Gustave Koechling (« Mr. Koechling ») fell over a concrete block the Hospital had installed a few feet from its entrance door. [ 2 ] Taking the position that said concrete block constituted a dangerous trap, Mr.

Koechling is claiming $15,000 from the Hospital as compensation for the damages he suffered due to his fall. [ 3 ] The Hospital claims that it is not responsible for Mr. Koechling’s fall because the approximately 2 feet high - 6 feet long cement block that he tripped on was big enough and painted in such a bright color for him to have seen it. It did not constitute a trap. [ 4 ] As mentioned above, Mr. Koechling was coming out of the Hospital after having undergone a surgery for cataract in the right eye.

His eye was thus covered with a plastic eye protection. [ 5 ] As he stepped out of the Hospital, the cap he was wearing was blown away by the wind and “flew like a plane”. Without thinking and looking were he was going, as he so explained, Mr.

Koechling instinctively rushed in the right direction, following his cap being carried by the wind, when his path was blocked by one of the cement blocks the Hospital had installed a few feet from its entrance door. [ 6 ] As the parties explained, the Hospital installed a few big and colourful concrete blocks to form a barrier aimed at preventing cars from getting to close to the door, so as to keep the entrance clear for anyone attending its facility. [ 7 ] The Tribunal does not agree with Mr. Koechling when he asserts that the protection on his right eye did not impair his vision.

It reduced his visual field and that is probably the reason why, combined with the fact that he did not look where he was going, he did not see the big colourful obstacle in front of him. [ 8 ] As the Supreme Court of Canada long wrote: The infinite variety of factual situations makes it impossible to define exactly what constitutes a trap. However, we can say that a trap is in general an intrinsically dangerous situation. The danger should not be apparent but hidden : for example, a door opening not onto a regular stairway, as might be expected, but onto vertical steps like those of a scaffold: Drapeau v.

Gagné, [1945] Que. K.B. 303; a stake fixed in the grass of a path and hidden by it: Girard v. City of Montreal, [1962] C.S. 361 ; but not a step in a well-lit corridor: Hôtel Montcalm Inc. v. Lamberston, [1965] Que. Q.B. 79. The concept of a trap generally includes some connotation of abnormality and surprise, in view of the circumstances ; for example, a hole in the roof of a building under construction is not a trap for a workman working on the roof: Larivée v. Canadian Technical Tape Limited, [1966] Que. Q.B. 700; see also Perron v. Provost, [1959] Que. Q.B. 531. (Underscore added)

[ 9 ] The concrete blocks the Hospital uses to create a barrier and keep the cars at a certain distance of the entrance door are way to big and colourful to constitute a trap. Furthermore, Mr. Koechling knew or should have known that the barrier was there because he used the same door a few hours earlier to enter the hospital when he came in that day for his eye surgery. [ 10 ] Finally, it is a well established principle that each must guard against visible obstacles [1] . As Mr.

Koechling explained it himself, he did not look where he was going when he rushed after his cap, his mind being focussed only on catching it. [ 11 ] Although Mr. Koechling suggested that a different type of barrier made out of posts would have prevented his fall and injury, it appears from the description of Mr.

Koechling’s automatic reaction when he saw his cap being blown away that he is very probably wrong in his assumption. [ 12 ] Anyone who wants to assert a right shall prove the facts that sustain his claim by clear and convincing evidence that makes the existence of a fact more probable than its nonexistence [2] to satisfy the test of balance of probabilities [3] . [ 13 ] In the case of action for damages, the plaintiff must demonstrate, under the same rules of evidence, the fault of the party being sued, the damage suffered and the casual link between the fault and the damage [4] . [ 14 ] Mr.

Koechling as failed to establish by preponderance of evidence that the Hospital committed a fault that caused the damages for which he claims compensation. His claim is therefore dismissed. [ 15 ] Had the Court concluded that the Hospital was at fault for having installed concrete blocks a few feet away from its entrance door to prevent cars from coming to close to it, since Mr. Koechling suffered only a few bruises on his face from the fall that disappeared after a few days, it would not have granted more that $500 as compensation. [ 16 ] In accordance with

section 339 and 340 of the Civil Code of Procedure , Mr. Koechling ought to reimburse the Hospital the fee it paid to file its contestation. [ 17 ] WHEREFORE, THE COURT: [ 18 ] REJECTS the claim and CONDEMN Gustave Koechling to pay $240 to the LaSalle Hospital as legal costs. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: September 1 st , 2016 Une

partie peut obtenir la traduction française du présent jugement en adressant une demande écrite à la Directrice du secteur civil du Palais de justice de Montréal.