Nguyen-Savoie v. Embrace Spa

Nguyen-Savoie v. Embrace Spa Court Small Claims Court Date 2008-08-19 Citation 2008 NSSM 68 Docket 298223 Judge/Registrar/Adjudicator Slone, Eric K. (Adjudicator) Document Type Decision Decision Content Claim no. 298223 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Nguyen-Savoie v. Embrace Spa, 2008 NSSM 68 BETWEEN: JOANNA NGUYEN-SAVOIE Claimant - and - EMBRACE SPA Defendants REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Halifax, Nova Scotia on August 18, 2008 Decision rendered on August 19, 2008 APPEARANCES For the Claimant self-represented For the Defendant Peter Caldarozzi, owner Michele Kuryluk, manager BY THE COURT: [1] The Claimant sues the Defendant for the replacement cost of a cell phone that was ruined when it was accidentally laundered by the Defendant's staff in the pocket of a robe. The cost of a new phone of the same type would be approximately $500 plus tax. [2] The Defendant operates a Spa within a hotel in Halifax, although the facility is independently owned and operated. The Claimant had been given a locker to store her valuables while she was to undergo a facial, manicure and pedicure. She was also issued a robe to wear during these procedures. She says that she kept her cell phone with her because she was expecting a call. [3] Partway through these procedures, at the point when she was to have nail polish applied, she was obliged to remove the robe to avoid smearing. She hung the robe on the open door of her (unlocked) locker but did not think to remove the cell phone from the pocket. While she was in another area, Spa staff picked up the robe to be laundered, assuming that it had been discarded and needed to be washed. [4] The Spa deals with hundreds of clients a day and has a practice of picking up used robes frequently during the day. They have never felt it necessary to go through pockets. The robes are laundered for them by the hotel which houses the Spa. [5] When the Claimant returned from her pedicure she looked for her robe and became aware that her cell phone was missing. By the time it was found in the laundry it had been washed, dried and ruined. [6] The issue for me is: who bears responsibility? The Claimant obviously blames the Spa, and vice versa. [7] The Spa points to a disclaimer that is in its brochure to the effect that it is not responsible for lost or stolen items. A sign posted on the wall goes a little farther and states that the Spa is not responsible for damaged items. [8] The only basis in law to hold the Defendant responsible would be if it were negligent in its practice, or if it could be argued that it was an implied term of the contract for service to the effect that the Claimant's personal items would be safeguarded. I believe that the latter theory is put to rest by the disclaimers in the brochure and sign. The Defendant took pains to ensure that it was not undertaking such responsibility. [9] Such disclaimers would not necessarily preclude a claim in negligence. Parties cannot easily contract out of a minimum duty of care. However, I have concluded here that the Defendant was not negligent. The staff reasonably concluded that this robe was dirty, along with the dozens of others that would have been discarded within that time frame. Staff would not have any obvious reason to go through pockets. [10] I find that the Claimant on the other hand was slightly careless in keeping her cell phone out and not stashing it in the locker. It may have been only a momentary lapse on her part not to have remembered that it was still in the robe pocket, but it was a lapse nevertheless. As such, I find that the fault lies mostly with the Claimant herself. [11] I am not unsympathetic to the fact that this creates a financial hardship for the Claimant, but there is no legal basis to hold the Defendant responsible. In the result, the claim must be dismissed. Eric K. Slone, Adjudicator