2017 QCCQ 14343, 2017 QCCQ 14343

Pollmueller c. McGill University Health Centre 2017 QCCQ 14343 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-154128-161 DATE: December 7, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ JOSEF POLLMUELLER Plaintiff v.

MCGILL UNIVERSITY HEALTH CENTRE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Josef Pollmueller claims from McGill University Health Centre (MUHC) $2,201.64 for damages caused to his automobile when he entered into a collision with an automated parking booth located at the exit of MUHC’s parking lot. [ 2 ] MUHC denies all liability on the grounds that it committed no fault. Questions in Dispute

a) Has Mr. Pollmueller proved that MUHC committed a fault?

b) What is the cause of the accident?

c) What are the damages suffered by Mr. Pollmueller? Context [ 3 ] On January 12, 2016, Mr. Pollmueller visited MUHC and parked his car in a parking lot adjacent to and on the hospital grounds. [ 4 ] As he was leaving the parking lot, his car collided with the automated parking booth. The collision damaged the front bumper of the vehicle. The repairs cost $2,201.64, which he claims for MUHC. [1] [ 5 ] Mr. Pollmueller argues that MUHC is liable for the damages caused to his vehicle because the hospital’s parking lot attendants were slow in providing assistance to him at the automated parking booth.

Subsidiarily, he argues that the poor design of the automated parking booth caused the accident. Analysis and decision [ 6 ] To succeed in his claim, Mr. Pollmueller must prove, on a balance of probabilities, that (

i) MUHC committed a fault, (ii) he suffered damages, and (iii) the damages were caused by MUHC’s fault. [2]

a) Has Mr. Pollmueller proved that MUHC committed a fault? [ 7 ] Mr. Pollmueller must prove that MUHC committed a fault in the operation of the parking lot or in the design of the automated parking booth equipment. To meet his burden, the evidence offered must be clear and convincing and the alleged facts must not only be possible, but probable. [3] [ 8 ] MUHC operates a hospital in the Greater Montréal area. On January 12, 2016, Mr. Pollmueller visited the hospital to receive medical care. He parked his vehicle in a parking lot adjacent to the hospital (“Parking Lot”).

While the Parking Lot is on hospital grounds, it is actually operated by a third party contractor, Indigo Parking. [ 9 ] To enter the Parking Lot, all users must obtain a parking stub from an automated parking booth and gate located at the entrance/exit gate of the lot. When a user leaves the parking lot, he must approach the exit gate and insert his parking stub in the appropriate slot on the automated parking booth. [4]

[ 10 ] The automated parking booth panel has three slots: one for inserting the parking stub; a second slot to insert the credit card used to pay the parking fees; and a third slot from which a receipt is issued. [ 11 ] The automated parking booth also has a button which the user can press if he or she needs assistance. [ 12 ] Finally, a motion detector triggered video camera records all activities at the entrance/exit gate of the Parking Lot. The video monitors which record the activities at the entrance/exit gate are continuously monitored by an employee of the MUHC.

This employee can communicate with a parking lot user at the entrance/exit gate through a speaker located on the automated parking booth panel, if he notices that the user is in need of assistance or if the user presses the help button. [ 13 ] The Court viewed at the trial a video recording of Mr. Pollmueller’s accident, including the minutes prior to and following the incident. [5] The video clearly shows the circumstances and causes of the accident. [ 14 ] According to the video, as Mr.

Pollmueller’s car approaches the exit gate, he stops his vehicle next to the automated payment booth, lowers his driver side window and inserts his parking stub in one of the three slots on the panel. However, Mr. Pollmueller admits that he inserts his parking stub in the wrong slot; rather than inserting it in the slot meant for the parking stub, he inserts it in the slot intended to issue receipts. As a result of this mishap, the exit gate does not open. [ 15 ] Mr. Pollmueller then backs up his vehicle and in doing so, almost hits the automated payment booth.

While he is making this manoeuver, his actions are viewed by Mr. Andraous, the MUHC employee who is monitoring the video feed from the camera located above the entrance/exit gate of the Parking Lot. [ 16 ] Mr. Andraous notices the near collision involving Mr. Pollmueller’s car and the booth. He considers this driving as somewhat dangerous, so he communicates with Mr. Pollmueller through the intercom system and speaker located on the panel of the automated parking booth. He tells Mr. Pollmueller not to move his car as he is sending a parking attendant to assist him.

This interaction is clearly visible on the video and is repeated at trial by Mr. Andraous. [ 17 ] After hearing Mr. Andraous’ instructions, Mr. Pollmueller raises his driver’s side window and waits in his car for a parking lot attendant to appear. [ 18 ] While he is waiting, the driver of the vehicle that is waiting in line behind him leaves her vehicle and asks Mr. Pollmueller to move his car so that she can pay the parking fee and exit the parking lot. The driver of the vehicle returns to her car and backs up her vehicle so that Mr.

Pollmueller has enough space to back up away from the parking gate. [ 19 ] As Mr. Pollmueller attempts to back away from the parking gate, he steers the front wheels of his car to the right and away from the automated parking booth which is to his left. His car is roughly 20 to 30 centimeters from the concrete curb on which the automated parking machine is installed. [ 20 ] He manoeuvers forward to better position his car but once again turns his wheels completely to the right, away from the automated payment machine.

As he puts his car in reverse, the front wheels are still pointing to the right rather than straight ahead. As he backs up his car with the front wheels in this position, the left front driver side wheel hits the curb of the concrete structure on which the automated parking booth is installed. Rather than stop his car, Mr. Pollmueller continues his course in reverse. As a result, the left side of the front bumper collides with the automated parking booth machine and is damaged. [ 21 ] Mr.

Pollmueller exits his vehicle to survey the damage, then re-enters it to move his car out of the way and allow the vehicles behind him to exit the Parking Lot. [ 22 ] Roughly 70 seconds after the collision, Mr. Husseine Miskine, an Indigo parking lot attendant, arrives on the scene. He helps the driver of the vehicle that was behind Mr. Pollmueller’s car exit the Parking Lot. [ 23 ] Mr. Pollmueller argues that MUHC committed a fault in that it took too much time to dispatch a parking lot attendance to provide him assistance at the exit gate. [ 24 ] The Court does not believe that Mr.

Pollmueller has discharged his burden of proving that the response time constitutes a fault. [ 25 ] Based on the evidence heard at trial and the time stamp on the video recording, approximately 10 minutes pass between the time Mr. Andraous tells Mr. Pollmueller to stay in his vehicle and wait for help and the arrival of Mr.

Miskine. [ 26 ] It was his burden to prove that this 10 minute response was unreasonable, yet he failed to adduce any evidence as to what constitutes unreasonable delay in the context of the operation of a parking lot. [ 27 ] In any event, based on the Court’s review of the video and the testimony of the parking lot attendants heard at the trial, the Court does not believe that the 10 minutes response time in the present case constitutes a fault. [ 28 ] Mr. Pollmueller also argues that the design of the automated parking booth is faulty.

Specifically he claims that the machine is installed too close to the side of the concrete curb and that this caused his accident. [ 29 ] Mr. Pollmueller had the burden of proving that the design of the entrance/exit gate and the automated parking booth was faulty. Yet, he adduced no evidence other than two pictures of other parking lot installations. [6] This evidence is insufficient to support his claim of faulty design.

b) What is the cause of the accident? [ 30 ] Even if Mr. Pollmueller was correct in his argument that MUHC committed a fault, his claim would nonetheless fail because he has failed to prove that these purported faults caused the accident. [ 31 ] Indeed, based on the Court’s review of the video recording of the accident, the collision was not caused by any fault of MUHC or its subordinates, but rather by Mr. Pollmueller’s failure to heed Mr. Andraous’ instructions not to move his car and by his own faulty driving maneuver. [ 32 ] This reason alone justifies the dismissal of his claim.

c) What are the damages suffered by Mr. Pollmueller? [ 33 ] Mr. Pollmueller claims $2,021.64, representing the cost to repair the damaged front bumper of his vehicle. [7] [ 34 ] At the time of the accident, Mr. Pollmueller held an automobile insurance policy [8] as required by the Automobile Insurance Act, R.S.Q., ch. A-25. He admits at trial that his automobile insurer paid for the damages caused to his vehicle. He adds that he paid a deductible, but does not remember the amount. [ 35 ] Since Mr.

Pollmueller’s automobile insurer paid for the damages to his car, and considering that his insurer is subrogated in his rights, Mr. Pollmueller has suffered no damages, other than the deductible he paid. [9] [ 36 ] Therefore, even if Mr. Pollmueller had succeeded in proving that MUHC committed a fault which caused the collision, which he has not proven, the only damages which he would have been entitled to claim would be limited to the deductible he paid. This evidence was not made.

FOR THESE REASONS, THE COURT: [ 37 ] DISMISSES Josef Pollmueller’s application against McGill University Health Centre; [ 38 ] WITHOUT COSTS. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: November 14, 2017