2013 QCCQ 1986, 2013 QCCQ 1986

Mazzilli c. Loblaws 2013 QCCQ 1986 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-124099-104 DATE: February 13, 2013 ______________________________________________________________________ BY THE HONOURABLE MARTINE L. TREMBLAY ______________________________________________________________________ ANGELA MAZZILLI Plaintiff v.

LOBLAWS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $ 7000 for the damages sustained on July 4, 2009, when, while she was entering Defendant's store, the automatic sliding doors closed on her.

Hit by the door on her left side, she fell on the floor, where she remained unconscious for an undertermined, but most probably, short period of time. [ 2 ] She was found by her husband who was quite upset by the reaction of the store's personnel and their incapacity to give what he considered to be proper first aid care. [ 3 ] Plaintiff contends that the automatic doors' sensor failed to detect her presence, as it should have, and that Defendant is liable for the damages resulting of this malfunction. [ 4 ] Defendant pleads that Plaintiff has unfortunately slipped and fell, through no fault of Defendant, and that, in any event, the automatic sliding doors were well-maintained and were working normally that day.

QUESTION IN DISPUTE [ 5 ] It is only relevant to assess damages caused by a fault, if Defendant has in fact committed a fault, as defined in the Civil code of Quebec . Therefore, the Court will first determine if Defendant can be held liable for the fact that the automatic sliding doors closed on Plaintiff.

A) Considering that Defendant was the custodian of the automatic sliding doors, can Plaintiff benefit from the presumption of

article 1465 of the Civil Code of Quebec , namely that Defendant is liable to repair the injury resulting from the autonomous act of the automatic sliding doors, unless he proves that he is not at fault?

B) In the negative, can Defendant be held liable under the general provision of

Article 1457 of the Civil Code of Quebec ? THE FACTS [ 6 ] From the evidence adduced at trial, the Court summarized hereafter only the relevant facts.

[ 7 ] The incident occurred at around 5:10 p.m. The cashiers' supervisor testified that she had entered the store earlier that day through the same doors without noticing any problem with the doors' mechanism.

They opened properly and no one complained of a problem with the doors prior to or after Plaintiff's fall that day. [ 8 ] She also explained that following the incident and as per Defendant's policy, store personnel gathered all the available information susceptible of assisting in the determination of what had really happened. [ 9 ] The sweeping log, exhibit D-4, shows that the entrance was swept at 4:56 p.m. that day, i.e. shortly prior to Plaintiff's arrival. Plaintiff confirmed that the floor was dry and that there was no carpet.

She was wearing new sandals. [ 10 ] Defendant’s employees found a work order, exhibit D-2, that confirmed that the company responsible for maintaining the entrance doors had come on June 30, 2009, and replaced the felts. During that visit, no other problem had been noticed or documented. [ 11 ] There was no video from any of the store cameras showing the incident. Plaintiff confirms that the pictures of the entrance , Exhibit D- 3, show the entrance floor as it was at the date of the accident. [ 12 ] Plaintiff suffers from multiple sclerosis.

She admits that as a result thereof, she knows that her reaction time may be lesser than a healthy individual and her equilibrium may be slightly affected. [ 13 ] Plaintiff testified that when she decided to enter the store, she had realized that the entrance doors had started to close and that she knew there could be a slight delay between the time the doors movement sensor would detect her presence and the time the doors would reopen.

ANALYSIS [ 14 ] The Court accepts Plaintiff's description of the incident and concludes that her fall was caused by the closing doors and that her head injuries were only the direct and immediate result of the fall. It is therefore unnecessary to draw a negative inference from the fact that the store was unable to supply the video from the camera filming the entrance area. A. Can Plaintiff benefit from the presumption of

article 1465 of the Civil Code of Quebec , namely that Defendant is liable to repair the injury resulting from the autonomous act of the automatic sliding doors, unless he proves that he is not at fault? [ 15 ] Can one speak of an autonomous act of the automatic sliding doors when one knows that, in order for the doors to be or to remain open, a sensor has to detect the presence of a person or object within a certain perimeter? [ 16 ] The question is interesting but the Court not need to answer it given that it has concluded that even if the presumption of liability of

article 1465 of the Civil Code of Quebec was to be applied in this matter, Defendant has rebutted it. [ 17 ] Indeed, from the testimony of Plaintiff's husband, the Court retains that when he found his wife, her body was positioned in such a manner that the doors had to be opened. No store personnel had intervened yet. Therefore, the doors had to be maintained open by the sensor.

Prior to the incident, no one complained that the sensor or the doors were defective. [ 18 ] Furthermore, considering that Plaintiff admits that she noticed the doors were in the process of closing prior to her decision to enter the store and the fact that the left panel obviously hit Plaintiff, the Court has to conclude that either the sensor did not have sufficient time to stop the door movement and trigger the opening movement, which could be the result of the speed at which Plaintiff walked into the store, or Plaintiff entered into the store too close to the left panel or a combination of both.

Add to this the fact that Plaintiff also admitted knowing that there is always a slight delay between the time the sensor detects a person's presence, when he or she approaches the doors, and the time that the doors start to open. The Court must therefore conclude that the unfortunate fate of Plaintiff is the result of her own fault. B. Can Defendant be held liable under the general provision of

Article 1457 of the Civil Code of Quebec ? [ 19 ] To prevail under the general provision of

Article 1457 of the Civil Code of Quebec , Plaintiff had to establish actions or omissions on the part of Defendant with respect to the maintenance of the doors or with respect to the entrance, that were not those of a reasonable store owner placed in the same circumstances. No such evidence was offered. FOR THESE REASONS, THE COURT : DISMISSES Plaintiff’s action, with costs taxed at $ 194.00.

__________________________________ MARTINE L. TREMBLAY, J.C.Q. Date of hearing: January 9, 2013