2012 QCCQ 10925, 2012 QCCQ 10925

Carsley c. Maxi & Cie Bedford (Loblaws) 2012 QCCQ 10925 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-120955-101 DATE: NOVEMBER 13, 2012 ______________________________________________________________________ BY THE HONOURABLE JULIE VEILLEUX J.C.Q. ______________________________________________________________________ ARNOLD CARSLEY Plaintiff v.

MAXI & CIE BEDFORD (LOBLAWS) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims an amount of $3,999 from Defendant following a fall which occurred on November 23 rd , 2009. [ 2 ] Plaintiff was semi-retired at the relevant time and used to run errands at Defendant on a regular basis.

On November 23 rd , 2009, as he was walking in the frozen fish department, he turned left following a freezer located in the middle of an aisle and, according to his testimony, flew over an empty pallet located just behind the freezer. [ 3 ] Mr. Carsley files pictures of the freezer and the aisle where the accident occurred and Defendant does not contest the fact that there was a pallet behind the freezer on that specific date. [ 4 ] According to Plaintiff, he fell on his back, stood up and shortly after, an employee, Mr. Mandouil, came to offer him help.

At the time, he felt dizzy and felt pain but nevertheless, he walked to the customers’ service at the front of the store where he spoke to Mrs. Di Pasquale. [ 5 ] Mrs. Di Pasquale, who testified at the hearing, explained that she called management in order for one of their representatives to fill out an accident report form with Plaintiff. [ 6 ] Said report was filled out by Mr. Giacomo who also prepared hand-written notes given to Plaintiff with respect to the accident. Plaintiff explained that Mr.

Giacomo, who could not testify at the hearing, offered to pay for his broken cell phone, offer that he accepted. [ 7 ] Plaintiff drove back home and had to take pain killers for a couple of days. He did not consult a doctor nor did he have to go to the hospital but he noticed important bruises on his thigh, photos of which are filed into the Court record. [ 8 ] Mrs.

Cahittaro, Plaintiff’s friend, testified that she saw Plaintiff four or five days after his fall and he seemed to be in pain as he was moving slowly in his apartment. [ 9 ] The damages claimed by Plaintiff relate to his pain and suffering together with inconveniences and stress he suffered following his fall. [ 10 ] Defendant is represented at the hearing by Mr. Bujold, a claims adjustor, appointed by Cunningham Lindsey. Defendant does not deny that there was an empty pallet on the floor behind the freezer on November 23 rd , 2009 but suggests that Plaintiff did not fall. [ 11 ] Defendant’s employee, Mr.

Mandouil, filed a declaration in lieu of testimony and was also heard. In his written declaration, Mr. Mandouil explains that when he arrived at the site of the accident, Plaintiff was lying on the floor. In his testimony, he rather said he does not know whether Plaintiff had fallen. In any case, he insisted on the fact that Plaintiff had a tape recorder and that he did not seem to be hurt. [ 12 ] Defendant argues that the " Registre de balayage " filed into the Court record for the relevant date shows that maintenance is taken seriously and that there was no negligence on the part of Defendant.

A review of this document shows that the sweeping is done in the meat department approximately every thirty/forty minutes. [ 13 ] The hearing was suspended in order for the Court to hear the testimony of Mr. Philippe Leduc, a claims adjustor with Cunningham

Lindsey, involved in another case with Plaintiff. [ 14 ] Mr. Leduc explained that in March of 2006, Plaintiff filed another claim against another branch of Defendant, this one located on Boulevard Ste-Croix, in Ville Saint-Laurent. The accident occurred outside and he remembers a difficult cooperation on the part of Plaintiff who at the time was threatening to sue Defendant for $75,000. Mr. Leduc has no involvement whatsoever with respect to the November 23rd, 2009 accident. ANALYSIS [ 15 ] Plaintiff has the onus of demonstrating Defendant’s fault as per

Section 1457 of the Civil code of Québec , 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. [ 16 ] In the present case, and although sweeping is done on a regular basis by Defendant’s employees, Plaintiff has demonstrated that the hidden pallet behind the freezer can be considered a "trap" as a customer cannot expect such an empty pallet to be left unattended and hidden behind the freezer.

Plaintiff provided the Court with evidence that due to the empty pallet, he fell and was hurt. [ 17 ] According to the proof offered at the hearing, Plaintiff suffered minor damages following his fall and should be compensated for same. [ 18 ] The damages suffered by Plaintiff can be summarized as follows: − dizziness after the fall; − pain which led Plaintiff to take pain killers for a couple of days; − bruises on this thigh. [ 19 ] The Court finds that a compensation in the amount of $500 should be allowed to Plaintiff in view of the proof offered and the superficiality of the damages sustained.

FOR THESE REASONS,THE COURT: GRANTS in part Arnold Carsley’s claim against Maxi & Cie Bedford (Loblaws); CONDEMNS Maxi & Cie Bedford (Loblaws) to pay Arnold Carsley an amount of $500, with interest at the legal rate together with the additional indemnity as per

section 1619 C.c.Q. as of December 15, 2009; THE WHOLE, with costs ($127). __________________________________ JULIE VEILLEUX, J.C.Q. Dates of hearing: August 27 and November 5, 2012