2013 QCCQ 3815, 2013 QCCQ 3815

Rich c. 3095-8797 Québec inc. 2013 QCCQ 3815 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-124603-103 DATE: April 15, 2013 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L.

CAMERON, J.C.Q. ______________________________________________________________________ Linda Rich […] Pierrefonds, Qc, […] Plaintiff v. 3095-8797 Québec Inc. 401 avenue Bourke Dorval, Qc, H2S 3W8 Steve Stamoulos […] Dorval, Qc, […] Anastatios Koutsoukos […] Dorval, Qc, […] Defendants and Les Aliments Mels Gourmet Inc. 158 bouchard, Dorval, Qc, H9S 3W8 Impleaded party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff Linda Rich, who suffered serious personal injuries when she fell in the parking area of a strip mall at 399-421 Bourke Street, Dorval on March 6, 2009, sues the owner of the mall, 3095-8797 Québec Inc. and its two principals Steve Stamoulos and Anastasios Koutsoukos for damages, reducing the amount of her claim to the maximum permitted in the Small-Claims Division, $ 7 000. [ 2 ] She slipped as she stepped from the sidewalk onto the asphalt on a patch of glare ice. [ 3 ] The injuries she sustained were quite serious, including a fracture of the right knee-cap and a fracture of left shoulder. [ 4 ] The loss of income alone, for a period of four months, gave rise to a financial loss of close to $ 9,000.

She has a long-term disability relating to the knee, suffered extreme pain and discomfort as a result of the injury itself and due to the the surgery and rehabilitation that followed. [ 5 ] She has an ongoing condition that involves pain and discomfort, with the associated psychological impact, as could be expected in the case of such serious injuries. [ 6 ] The Defendants' insurers encouraged them to implead, as a third party, Les Aliments Mels Gourmet Inc., the operator of the restaurant situated in the strip mall where the Plaintiff had dined with a friend, Mark Bandel, before returning, by the sidewalk, to the place, situated on the other extremity of the strip mall, where there had parked. [ 7 ] As Impleaded Party, Les Aliments Mels Gourmet Inc. can be considered both as a defendant in warranty and as an additional defendant.

[ 8 ] The Defendants and the Impleaded Party readily admitted the quantum to be at least the $ 7 000 claimed. [ 9 ] In the Court's

summary analysis of the claim, having read the medical file and listened to the Plaintiff's description of the damages, the quantum of the damages is, obviously, several times that amount. [ 10 ] Les Aliments Mels Gourmet Inc., the operator of the Barbie's restaurant, rightly pointed out that it has no liability for this matter. The accident took place at the other end of the strip mall in the parking areas.

Les Les Aliments Mels Gourmet Inc. contributed to the costs of the maintenance of the parking areas by the landlord but had no care and control of that area nor has it been established that it had any knowledge of the development of the icy patch that developed on the surface of the parking area on the day of the event. [ 11 ] Mr Stamoulos described himself and his business partner Mr Anastasios Koustoukos whom he represented at the hearing, as co- owners of the property.

They are not merely passive owners: they have a day-to-day role in management of the property. [ 12 ] The lease and the documents in the file suggest that 3095 8797 Québec Inc. is the registered owner. [ 13 ] Mr Stamoulos, however, refers to himself as owner and stated that it was in his capacity as owner that he normally spread salt on the parking lot during the winter months. [ 14 ] He also took care of the snow-removal, by hiring a contractor.

He had a day-to-day involvement in the operation of the mall because he also worked in a convenience store that he owned through a different company situated in front of the spot where the Defendant fell. He took care of placing salt himself, rather than making that task part of the snow-removal contract. [ 15 ] When the event occurred, he was called to the scene by an employee and was able to see for himself the spot where the accident had occurred. [ 16 ] Mrs Rich explains that there was only one parking space left when she and her friend arrived.

They noticed that there was ice on the asphalt, but had no difficulty in getting to the sidewalk that runs in front of the mall in order to walk over to the restaurant. [ 17 ] She was wearing ordinary winter boots that she also had on during the hearing.

The Court accepts her testimony to the effect that she was walking in a normally-prudent manner as she advanced along the sidewalk toward the parking spot after leaving the restaurant. [ 18 ] Just before she stepped down from the sidewalk onto the pavement Mr Bandel said to her "watch out" as she placed her foot down onto the asphalt and immediately slipped and fell. [ 19 ] In extreme pain, and incapacitated, she had to be removed from the scene by ambulance. [ 20 ] The Plaintiff and Mr Bandel both testifed there was not "an ounce of salt on the pavement". It had been mild in that period of March.

When they left the restaurant it was around 7:30 in the evening and was getting dark. [ 21 ] After the incident, it was pointed out to the person operating the convenience store that salt should to be put down. [ 22 ] Mr Stamoulos readily admits there was a thin sheet of ice about four by twenty feet square, including the exact spot where the Plaintiff fell. He explained that the snow removed from the parking surfaces was piled up at the edge of the parking lot.

There was an area where melting snow caused a small stream of water to flow down from the edge of the parking lot toward the drain. [ 23 ] It was this stream of water that froze that evening creating the slippery surface on which the Plaintiff fell. [ 24 ] Mr Stamoulos' position in the matter is that slippery surfaces are a normal condition in winter and it is up to people parking and walking in his parking area to exercise special care and attention. [ 25 ] He admits that he did not put salt down on the pavement that day when he left late in the afternoon. He noticed that water was flowing in the area.

He did not provide for someone, such as his employee working in the convenience store directly in front of the area, to spread salt once the flow of water froze as the temperature decreased in the evening. ANALYSIS [ 26 ] The Defendants that are sued as owners of the mall seem to imply that the Plaintiff was a victim of her own negligence.

If she chose to walk on the slippery surface, she is responsible for her injuries. [ 27 ] This is tantamount to saying that when she saw that there was ice on the surface of the parking lot she should have got back into her car and gone home. [ 28 ] But she was able to walk without trouble from the car up to the sidewalk, which was completely bare of any ice or snow, and she had no reason to believe that she would not be capable of getting back into the car. [ 29 ] She and Mr Bandel were aware of the ice and the fact that they ought to be careful and, in fact, they were trying to be careful.

Despite being careful, Mrs Rich slipped on the ice onto which she stepped in a very normal fashion. Were it not for the ice, she would not have slipped. [ 30 ] Mr Stamoulos was aware that water was flowing over this spot and, given that the temperature was close to the freezing point, he ought to have foreseen the possibility of an accident and prevented it by arranging for salt to be spread to prevent a patch of ice developing. It would have been a simple matter for him to take care of this.

He could have also placed a barricade or cone on the area where the ice patch developed to prevent pedestrian traffic in that area.

[ 31 ] An owner and hands-on operator of a commercial establishment to which the public is invited, who has an awareness of the potential development of a dangerous condition because of snow or ice, has to duty to act reasonably to prevent foreseeable accidents by taking the necessary steps, in a prompt and inefficient manner.

The Defendants failed in that duty. [ 32 ] Therefore the Plaintiff's action is well founded. [ 33 ] Even if the Court had found a contributory fault by the Plaintiff which it did not, the damages are so much in excess of the amount that can be claimed in the Small-Claims Division, that even a substantial reduction, through an apportionment of fault, would nonetheless have given rise to an award of damages of, at least, $ 7,000.

BY THESE REASONS, THE COURT: CONDEMNS the Defendants to pay to the Plaintiff the sum of $ 7,000, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from the date of the institution of the proceedings; CONDEMNS the Defendants to pay the Plaintiff's judicial costs of $159.00; DISMISSES the claim against the Impleaded party, Les Aliments Mels Gourmet Inc; __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: January 28, 2013