Luv Understanding - v. -, 2013 SKPC 95

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 095 Date: June 10, 2013 File: 7/12 Location: Canora _____________________________________________________________________________ Between: Luv Understanding - and - Terry Dennis and Gerald Dennis Self For the Plaintiff Steven Haichert For the Defendants _____________________________________________________________________________ JUDGMENT R. GREEN , J ______________________________________________________________________________ I. INTRODUCTION [ 1 ] This is a so-called slip and fall case.

On March 18, 2011, the Plaintiff Luv Understanding was shopping at Dennis Foods in Canora, which has been owned and operated for many years by the Defendants Terry and Gerald Dennis. She fell on ice on the sidewalk in front of the store, while returning to the store to get the rest of her groceries. Terry Dennis was walking behind the Plaintiff when she

fell, as he was assisting her in carrying groceries to her vehicle. [ 2 ] The Plaintiff claims damages from the Defendants of $20,000.00, saying they were negligent in not preventing or removing the ice she fell on. She claims they are liable to her for the injuries to her right wrist and hand, arm, and hip that she suffered from the fall. The Defendants deny any liability to the Plaintiff for her slip and fall. [ 3 ] Although the Plaintiff did not use the words in her Summons, I accept that her claim is made in the tort of occupier’s liability.

As a result, to establish liability against the Defendants, the Plaintiff must prove four things on a balance of probabilities. These are that: (1) the ice she fell on was an unusual danger; (2) the Defendants knew or ought to have known of it; (3) the Defendants did not take reasonable care to prevent damage from this ice; and (4) she took reasonable care for her own safety. [1] [ 4 ] For the reasons that follow, I am not satisfied on a balance of probabilities that the Defendants are liable to the Plaintiff for her slip and fall. II.

THE SLIP AND FALL [ 5 ] The Plaintiff says she slipped and fell on a small patch of transparent ice. She was returning to the store from her friend’s vehicle which was parked in front of Dennis Foods. She said her foot flew out to the side and back of her and she fell forward onto her right hand and down onto her right knee (as pictured in a picture taken of her one month ago - Exhibit P-1). [ 6 ] I accept that this incident happened between 9:35 a.m. and 9:40 a.m. The Plaintiff said it happened at 10:45 a.m., based on the receipt she tendered showing the time of 10:42 a.m. for her purchases (Exhibit P-15).

Terry Dennis said the Plaintiff fell between 9:35 and 9:40 a.m. I accept his evidence - similar to that of his brother Gerald - that the cash register they were using in 2011 had an incorrect time printed on its receipts. It was about one hour and ten minutes fast and, as a result, the receipt should have properly shown a time of about 9:30 a.m.

I further accept that Gerald Dennis began work at 10:00 a.m. this morning, an hour after the store opened at 9:00 a.m., and, as a result, did not see the Plaintiff slip and fall. [ 7 ] By pictures taken after the incident in front of Dennis Foods, the Plaintiff indicated the area of the sidewalk where she fell which included an uneven portion of the sidewalk (Exhibits P-1 to P-5).

While the parties differed on the exact location of the fall, there is no doubt she fell on a sidewalk in front of the store. [ 8 ] I accept the evidence of Terry Dennis that: (1) on the morning of March 18, 2011, before the store opened, there was freezing rain and snow in Canora; (2) at 8:45 a.m., he shovelled the snow off the sidewalk in front of his store and applied a five kilogram bag of de-icer pellets onto the sidewalk; (3) of the 120 customers at his store that day, no one else had a problem with slipping and falling on the sidewalk; and (4) he was not aware of anyone having slipped and fallen on this sidewalk in the twenty-eight years he has been an owner of Dennis Foods. [ 9 ] Terry Dennis said, after the Plaintiff fell, that he helped her up and she said she was okay and not in any pain.

He said she was not limping or showing any signs of injury. Cashier Leona Korsar said she saw the Plaintiff fall, and heard Terry Dennis ask her if she was okay and the Plaintiff responded that she was.

[ 10 ] The Plaintiff said, initially as a result of the fall, she felt some discomfort in her wrist and some stress in her hip, although the latter stress was nothing serious. She said to Terry Dennis “you should put something on the ice” and he responded that it was a good thing the Plaintiff was in good condition. By 1:00 p.m. that day she felt more pain in her hip and right knee, and by the next day, she felt pain and swelling in her wrist, thumb joint and knuckles and up her inner arm. [ 11 ] On March 30, 2011, she returned to Dennis Foods and told Terry Dennis of her intention to file a claim. Mr.

Dennis responded that he hoped it would not come to this. She responded that she had injured her wrist and hip and that she should not be blamed for prioritizing her health. Mr. Dennis then suggested that she go to the Town of Canora. She refused saying that Dennis Foods should monitor the sidewalk as opposed to the Town of Canora. Mr. Dennis then suggested that she contact their insurer, which was Community Insurance in Canora. III. THE ELEMENTS OF OCCUPIER ’S LIABILITY 1. Was this ice an unusual danger? [ 12 ] In the language of occupier’s liability, the Plaintiff was an invitee at the Defendants’ store.

An unusual danger is a danger that is not usually found in carrying out the task, or fulfilling the function, of the invitee. [2] Here, the Plaintiff was carrying out the task of shopping at the Defendants’ store, during regular business hours, when she slipped and fell on the ice. [ 13 ] Justice Lawton, in Kirby v. Fairbairn [3] , considered the claim of a milkman who fell on ice on the Defendants’ sidewalk, delivering milk to them in Regina in February. In finding that this ice was not an unusual danger, Justice Lawton said: Is ice on a Regina sidewalk in February an unusual danger?

Cold weather, with its snow and ice, comes to Saskatchewan every year, and every year Saskatchewan adults, knowing the perils of walking on snow and ice, govern themselves accordingly. The plaintiff, a long- time milkman in Regina, knows that in carrying out his duties, which require him to go to and from houses in winter, he has to walk on ice on occasion. It is just one of the facts, if not one of the hazards, of his business. [4] [ 14 ] Similarly, I am not satisfied that the ice the Plaintiff slipped on was an unusual danger.

That is because ice on a Canora sidewalk, in late winter, is a risk that would reasonably be expected by someone shopping in the downtown area. While the Plaintiff said it was sunny and clear when she fell, and while she lives outside of Canora at Buchanan, I am satisfied that: (1) she knew ice on such a sidewalk was a possibility; and (2) she knew or should have known about the freezing rain earlier that day. 2.

Did the Defendants know about this ice? [ 15 ] While I accept that the Defendants were well aware of the risk of ice on this sidewalk this day, given the freezing rain and the fact Terry Dennis applied de-icer pellets to the sidewalk before the store opened, I am not satisfied on a balance of probabilities that the Defendants knew about the specific patch of ice that the Plaintiff fell on. That is because

(1) Terry Dennis spread a five kilogram bag of de-icer pellets on the sidewalk less than an hour before the Plaintiff fell and reasonably believed this had taken care of the ice;

(2) Mr. Dennis had walked over the same area of sidewalk only seconds before the Plaintiff fell, while carrying groceries for the Plaintiff, and did not see the ice; and

(3) Mr. Dennis was suffering from a bad hip on this day and had no difficulty walking on the sidewalk. [ 16 ] The evidence of John Rosco, a customer at Dennis Foods this day who arrived at the store not long after the Plaintiff fell, as well supports my conclusion on this question. Mr. Rosco lives about two blocks away from the store, and did a number of errands before arriving at Dennis Foods. He described the day as rainy and slippery and “building for a storm” and said that sidewalks around the town were slippery, especially near the post office which was very slippery. He, however, said the sidewalk in front of Dennis Foods was not a problem this day.

3. Did the Defendants take reasonable care to prevent damage from this ice? [ 17 ] Considering the evidence of the Defendants about their standard practice in removing snow and ice from this sidewalk, and Terry Dennis’ evidence about the specific actions he took this day in doing so, I am satisfied that the Defendants took reasonable care to prevent damage from the ice the Plaintiff fell on. That evidence - which I accept - is:

(1) Gerald Dennis said the standard practice with his brother Terry Dennis was that one of them would arrive early to the store and shovel snow off the sidewalk or salt any ice on the sidewalk. Other than the Plaintiff, he was not aware that anyone had slipped and fell on the sidewalk in front of their store during business hours this day or any other day;

(2) Terry Dennis said his standard practice, every morning, was to scrape and de-ice the sidewalk. He said both he and his brother were actively involved with customers at the store, and they often helped customers carry groceries out to their vehicles. This allowed him further opportunity to check the sidewalk for snow and ice; and

(3) Terry Dennis shovelled this sidewalk of snow and applied a five kilogram bag of de-icer pellets to this sidewalk before the store opened that morning. 4. Did the Plaintiff take reasonable care for her safety? [ 18 ] Based on the Plaintiff’s evidence, I accept that she took reasonable care for her safety.

That is because I accept her evidence that: (1) she was walking at a comfortable speed and that she was looking out for visible ice; (2) she was suffering from no ailment or any problem that had a significant effect on how she walked or on her eyesight; and (3) she was wearing appropriate footwear, which was a pair of winter boots (pictured in Exhibit P-6). IV.

CONCLUSION [ 19 ] Despite my last finding, because I am not satisfied that: (1) the ice the Plaintiff fell on was an unusual danger; (2) the Defendants knew about the specific patch of ice she fell on; and (3) the Defendants did not take reasonable care to prevent damage from the ice, I am not satisfied that the Defendants are liable to the Plaintiff for her slip and fall in the tort of occupier’s liability. [ 20 ] While not necessary to decide this case, the medical evidence tendered by the parties requires a brief comment.

The Plaintiff filed two outpatient records from Canora Hospital (dated April 8, 2011 by Dr. Newstead and December 6, 2011 by Dr. Roelins - Exhibits P-8 and P-9) and two opinion reports from orthopaedics specialists at Royal University Hospital in Saskatoon written in December 2012 (Dr. Johnston regarding her right wrist and Dr. Dust regarding her hip - Exhibit P-11). The Defendants introduced, in cross-examination of the Plaintiff, a radiology report from Canora Hospital, written by Dr.

Poon and dated April 1, 2011 (Exhibit D-2). [ 21 ] I admitted all these reports and letters under s. 28.1 of The Small Claims Act, 1997 but made clear the point that the weight to be put on any of these was yet to be determined. No doctors testified at the trial. [ 22 ] Had it been necessary to assess this medical evidence toward the quantum of damages - which is not the case - I would have found that evidence, at best for the Plaintiff, to be equivocal in proving what injuries to her were caused by the fall. That is because:

(1) I would have put no weight on the outpatient record written by Dr. Newstead as the Plaintiff filed a letter written to the Court in March 2013 in which she said she was unable to rely on the doctors from the Canora Medical Clinic (which included Dr. Newstead) as, amongst other reasons, they had become hostile to her (Exhibit P-12);

(2) Arguably, the best evidence of the effect of the fall on her was the radiology report by Dr. Poon on April 1, 2011, thirteen days after the fall. This radiologist found no recent fracture in the right wrist and hand, slight osteoarthritis in her little finger and wrist and no other significant abnormalities. He as well found no abnormalities in her right hip;

(3) I would have put little weight on the outpatient record from December 6, 2011, as it notes only mild swelling in her right wrist and osteoarthritis; and

(4) I would have put no more weight on the reports from Drs. Dust and Johnston than on Dr. Poon’s radiology report. Dr. Dust, writing twenty months after the slip and fall, said that (

a) he did not think the Plaintiff had done anything serious to her hip; (

b) her pain is mostly muscle and soft tissue in nature; and (

c) the pain in her upper hip is likely from a bursitis. Dr. Johnston noted advanced osteoarthritis in her right thumb, and what he termed as - but did not further explain - scapholunate advanced collapse and distal ulna non- union. Neither orthopaedic specialist indicated the cause of any injuries they found. [ 23 ] In many ways this is a sad case. The Plaintiff was obviously stressed over what happened, and remains convinced that it is the Defendants who are responsible and liable to her for her slip and fall.

Regardless of my decision, I am satisfied from the evidence and submissions at the trial that she will remain so convinced. [ 24 ] While it is possible - although not in my view proved on a balance of probabilities by the evidence - that the Plaintiff may suffer some ongoing medical challenges as a result of this slip and fall, as I said, above, I am not satisfied that the Defendants are liable to her for that fall. [ 25 ] The Plaintiff’s action is dismissed. There will be no order for costs. R. Green, J [1] Kirby v. Fairbairn , 1995 CarswellSask 763 (Sask.

Q.B.) at para. 2 . [2] Paraphrasing the test from London Graving Dock Co. Ltd. v. Horton , [1951] A.C. 737 at p. 745 . [3] Supra , note 1 at para. 20. [4] At para. 20.