2012 QCCQ 7051, 2012 QCCQ 7051

Sonya Parris c.. Sitq International Inc. 2012 QCCQ 7051 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division N° : 500-22-163993-093 DATE : September 21, 2012 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ SONYA PARRIS Plaintiff vs. SITQ INTERNATIONAL INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing defendant, in damages, after falling on a property which it manages.

THE FACTS [ 2 ] On October 26, 2006, plaintiff, a 47-year-old technical writer and single mother of two, was on her way to a job interview, when she "tripped and fell" on the front terrace of said property, namely a skyscraper located at 1000 De La Gauchetiere street, in Montreal. [ 3 ] Plainfiff testified that she did not notice that there was a "decline" in "the frontal landscaping, which is black granite and marble and merges with the sidewalk".

She also stated that there was a "very subtle gradual step", which she could not see. [ 4 ] Plaintiff lost her footing, fell and twisted her left ankle inwards. [ 5 ] Plaintiff testified that it was a "dry, sunny, clear, mild day", and that she was wearing "fall boots with a thick rubber heel". [ 6 ] After the fall, plaintiff, who was in excrutiating pain, could not get up. Two people eventually helped her back into the building, after which she was assisted by defendant's security personnel and accompanied to a nearby medical clinic. Plaintiff was seen by a doctor and released after having X-rays.

It was suggested to plaintiff that she follow-up with her family physician. [ 7 ] Over the months and years that followed, plaintiff's ankle "seemed to improve", but remained "swollen and tender". [ 8 ] Plaintiff, who was a strong, athletic and active person, was unable to exercise, as she had in the past. [ 9 ] Plaintiff had some physiotherapy, but stopped, because she "ran out of time and money". [ 10 ] In 2008, plaintiff had an MRI, but did not want to have surgery. [ 11 ] Plaintiff now feels that this is "a condition that (she) will have to live with", and takes Tylenol or Advil for pain relief. [ 12 ] Plaintiff is claiming $48,300.00 for pain and suffering; partial incapacity; stress, trouble and inconvenience; medical and paramedical expenses; and future physiotherapy and medical treatment.

The bulk of the claim, however, in the amount of $40,000.00, is for "pain, suffering and partial incapacity". [ 13 ] Plaintiff filed an undated expert's report, prepared by orthopaedic surgeon Dr. E. Ruth Chaytor. [ 14 ] Dr. Chaytor testified that plaintiff "sustained a significant injury to her left ankle as a result of the fall she sustained in October 2006", and diagnosed her with a "regular ankle sprain", as well as a "high ankle sprain", with "signs of ongoing anterior ankle instability", all of which result in "persistent ongoing discomfort" and "ankle instability". [ 15 ] Dr.

Chaytor is of the opinion that plaintiff "may require surgery to stabilize her ankle"; but, as stated above, plaintiff does not wish to undergo surgery. [ 16 ] There is also, according to Dr. Chaytor, a significant risk of ostheoarthritis "in the future", due to a severe soft tissue injury to a joint.

[ 17 ] Finally, Dr. Chaytor evaluated plaintiff's "total whole person impairment" at 8%, but later revised this to approximately 4%. [ 18 ] At trial, defendant's main witness, safety coordinator Martin Rivet, testified regarding defendant's maintenance policies and practices. [ 19 ] The evidence clearly showed that the building and the surrounding area were very well maintained. There were two other falls, in the the same area, in 2007 and 2008.

However, given that the area is extremely busy and well-travelled and serves an office building, a bus terminal, a metro station, a train station, a skating rink, tourists and students, this does not seem unreasonable. [ 20 ] Defendant repaired and modified parts of the exterior terrace between 2004 and 2008. Rivet stated, "On a retiré la dalle de granite sur le bout du trottoir pour y faire une pente douce…pour que les gens allant de l'ouest vers l'est ne s'accrochent pas".

There had been a complaint, in this regard, in the past. [ 21 ] However, Rivet described the area where plaintiff fell as being a "grande esplanade plate" with a "décroché fini en coin droit, noir sur un fond de granite pâle". [ 22 ] Defendant's "Rapport d'événement" (exhibit D-1) indicates that, after plaintiff's fall, the area was examined, but nothing was found to be out of order.

DISCUSSION [ 23 ] Plaintiff had the burden of proof ( s. 2803 and 2804 of the Civil Code of Quebec ). [ 24 ] The onus of proving a fault or omission on defendant's part, by a preponderance of evidence, rested on plaintiff's shoulders. Unfortunately, she did not succeed in this regard. [ 25 ] There was no preponderant evidence that the area where plaintiff fell, was dangerous or unsafe; nor was there preponderant evidence to show that defendant failed to act in a prudent and diligent manner regarding maintenance and safety issues.

In fact, the evidence showed quite the contrary. [ 26 ] Both at trial and at her examination on discovery, plaintiff had difficulty describing the area where she fell. She described it as being a decline, incline, landscaping, landing, granite, with steps, without steps (transcript of examination at pages 20, 21, 22, 23, 24, 32 and 33). None of her descriptions, however, proved, by a preponderance of evidence, that the area was dangerous or that there was a trap which caused her to fall. [ 27 ] Plaintiff stated, on several occasions, that she was not looking down as she was walking, but rather straight ahead.

Unfortunately, this is what most likely caused her misstep and caused her to fall. However, the fact that plaintiff fell, does not, in itself, prove fault on defendant's part. [ 28 ] Whether the area contained a step or a gradual decline, the evidence did not show that the criteria of

a) an intrisically dangerous situation;

b) a hidden rather than apparent danger; and

c) a connotation of abnormality and surprise, were present [1] . COSTS [ 29 ] Finally, given that, at trial, Dr. Chaytor unexpectedly reduced the percentage of impairment by 50%, and given that plaintiff based herself on Dr. Chaytor's opinion to proceed to trial; given also the unfortunate consequences of the fall on plaintiff's life, and given plaintiff's limited financial resources; in its discretion, the Court shall not award costs to defendant [2] . WHEREFORE, THE COURT HEREBY: DISMISSES plaintiff's action, without costs. __________________________________ ELIANA MARENGO, J.C.Q.

M e Muriel Librati Teteilbaum Librati Lawyers for plaintiff M e Karine Boily Gasco Goodhue St-Germain Lawyers for defendant Dates of hearing : January 18 and 19 and June 27, 2012