Lamont v. Westfair Properties (Pacific) Ltd.

2000BCSC0406 Citation: Lamont v. Westfair Date: 20000303 2000 BCSC 406 Docket: 7369 Registry: Nelson IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: INGA LILLIAN LAMONT PLAINTIFF AND: WESTFAIR PROPERTIES (PACIFIC) LTD. AND WESTFAIR FOODS LTD. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE MCEWAN Counsel for the Plaintiff: R. Spilker Counsel for the Defendant: I. Hallam Date and Place of Hearing/Trial: March 3, 2000 Nelson, B.C. [1] The defendants bring an application pursuant to Rule 18A for an order dismissing the plaintiff's claim for damages in negligence. [2] The claim arises out of an incident on March 9, 1997. The plaintiff was a customer in a Great Canadian Superstore in Surrey, British Columbia when she slipped and fell on a puddle of water on the floor in the "front-end" area of the store. The defendants are the owners and occupiers of the store. [3] The plaintiff's evidence is that as she went about the store she noticed that the floors were untidy and that there was actually water on the floor in the dairy department. She deposed that she and her husband avoided going through the produce department because of debris on the floor. [4] The plaintiff further deposed that notwithstanding these concerns, she stopped paying attention to the floors once she was through the checkout. She says she did not notice a puddle of water at the front of the store until she slipped in it breaking her wrist and sustaining some cuts and bruises. [5] James Robert Lamont, the plaintiff's husband, deposed that he and the plaintiff entered the store about 7:00 pm. He said the store was busier and messier than any he had ever seen in his 69 years. He said there was produce and water on the floor in the produce department. He said the pedestrian traffic leaving the store was heavy. [6] Mr. Lamont deposed that the puddle on the floor where his wife fell appeared to be water. He thought the puddle was about 30 inches across. He deposed that the floor was a "shiny greyish colour" that made it difficult to see water. There were no warning signs. [7] Mr. Lamont deposed that no one at the store assisted his wife after her fall. He also suggested that the Assistant Manager was somewhat indifferent. [8] Mr. Lamont took photographs the next day. The store was not busy when he did so and the floors appeared very clean. [9] The defendant accepts that the plaintiff fell as a result of stepping in water that had pooled on the floor in the front end of the store. It meets the claim in negligence by offering evidence that the store had a reasonable cleaning system in place covering the area of the store where the accident occurred. [10] To this end the defendants produced a series of affidavits from store employees proving that they were on duty in the evening of March 9, 1997 and showing, by reference to cleaning logs, that a system was in place at the time. [11] Darryl Boyd, the defendant's District Manager responsible for the store where the plaintiff fell, deposed that as of March 9, 1997 the Surrey store had a maintenance program in place with the following features: 5. (a) Every night when the store was closed, contract cleaners attended. The company with the contract as at March 9, 1997, as is the case today, was Masterpiece Floor Maintenance. They sweep and buff the entire sales floor of the store, and strip and re-wax through the store on a regular rotation. The wax that is used by Masterpiece is Equinox Non-Slip Wax. (b) Upon hiring and through the course of employment, employees are instructed to watch out for spills. In the course of their duties, and if a spill is seen on the floor, it is to be dealt with by picking it up, marking it with a warning cone, calling General Services, sweeping and/or mopping as is appropriate. The store management impresses upon all employees a slogan, "Don't pass it up, pick it up." (c) The above mentioned "General Services" is a special janitorial staff employed by the store. They have a set routine through the course of the day, including the cleaning of the store's public washrooms on an hourly basis. As well, they are available to be called if a larger spill should occur. (d) The store is divided into two large departments, and a variety of sub-departments. The two large departments are Food and General Merchandise. The Food Department includes sub-departments such as bakery, produce and deli. The General Merchandise department includes several sub-departments including beauty, leisure and apparel. In the Food Departments, except grocery, there is a mandatory sweeping requirement every hour or more often, as required. In General Merchandise the mandatory sweep requirement is every two hours, or more often as required. In grocery, sweeps are completed by General Services employees every 2¼ hours. Each department has its own record of sweeps which are performed, a sweep log. (e) Sweep logs are periodically checked by department supervisors and store managers through the course of the week in order to ensure compliance. As well, store managers check sweep logs at the end of each week. Discipline will follow if the mandatory cleaning routine is found not to have been complied with. (f) Store managers, through the course of their day, walk through the sales floor of the store dealing with concerns about customers, employees, product levels, and store presentation. Approximately 75% of a store manager's day would be spent on the sales floor as opposed to in the office. As well, the store's office is located near the store entrance, exit and cashier area. As such, much of a store manager's activity would be focused in that area. Further, store managers deal directly at customer service with overrides of a value of $50.00 and over, and complaints of customers. Cash pick ups from cash registers require both a store manager and a "front end" supervisor. The store's public washrooms, located near the northern most cashier lanes, are periodically checked by store managers. 6. There is a department of the store called "front end", which includes the area of the store where customer service and the cashier lanes are located. The front end has its own separate mandatory cleaning routine, calling for sweeping on an hourly basis or more often as required. 7. Attached to this my Affidavit as Exhibit "A" is a true copy of the March 9, 1997, front end sweep log indicating that at 7:15 p.m. employee Sarah Gardner swept the front end of the Surrey Superstore. [12] Ms. Gardner deposed that she was working from 2:15 pm to 10:00 pm on March 9, 1997. She attached a copy of the "front-end" "sweep log" showing sweeping throughout the day and more particularly at 4:30 pm and 5:30 pm by one Carrie Richardson; at 6:05 pm by one Anne Segec; and at 7:15 pm and 8:30 pm by herself. Ms. Gardner said when she swept this would mean the entire front end including both sides of the 25 cashier lanes and the area between the cashier lanes and the store exit. [13] Carrie Richardson deposed that she did the sweep noted in the log at 4:00 pm, 5:30 pm and 8:45 pm. She went on to say: 9. When I was on duty on March 9, 1997, as Assistant Supervisor, I would not have been working in a cashier lane. Rather, I would move throughout the Front End Department. In particular, as Assistant Supervisor, I would be responsible for dealing with assisting customers "put always" which are items brought to a checkout but not purchased by a customer, keeping the magazine racks tidy, dealing with overrides at individual checkouts, monitoring the condition of floors, and assisting at Customer Service with customer inquiries and can and bottle returns. I would be responsible for either cleaning as is required by the above-mentioned mandatory cleaning program, or assigning such duties to be done. For example, I would have instructed Ms. Segec, and Ms. Gardner, to clean when they did. [14] Robert Penner, a general services or "janitorial" worker deposed that he was on duty on March 9, 1997 between 5:00 pm and 10:00 pm. He was specifically charged with cleaning the store washrooms. The washroom log shows hourly cleanings by Mr. Penner from 6:00 - 9:00 pm. He deposed to further effect, as follows: 9. The public washrooms in the Surrey Superstore are located across an aisle from the end of lanes, the cashier in particular the cashier lanes which are closest to the Bakery and Produce Departments in the store. My path through the store, when proceeding to clean the public washrooms, would be to proceed across the end of the cashier lanes, that is, where the cashier lanes are closest to the entrance and exit to the store. I would walk from where the store's "host" is located, then in between the checkouts and customer service, then between the cashier lanes and the store exit, and finally in between the cashier lanes and independent vendor kiosks. 10. As such, had there been water on the floor between the end of the cashier lanes and the exit to the store at 7:00 p.m. on March 9, 1997, I would have seen it. My instructions were to deal with spills seen in the course of my duty, and had I seen such a spill I would have cleaned it. [15] There is further evidence, contained in logs kept in the various store departments, that each department had systematic cleanings at various time intervals. The produce department log shows cleanings at 6:00 pm; 6:25 pm; 7:00 pm; and 8:00 pm on March 9, 1997. [16] While I have not exhaustively recounted the evidence, I am satisfied that the defendant has proved that throughout the store there were systems in place to periodically sweep the floors of debris and spillages. I am further satisfied that in the relevant area of the store, the front end, the defendant has established overlapping systems of inspection at the relevant time and date. [17] The defendants have clearly established the prima facie burden described in Ball v. British Pacific Properties Ltd. (Unrep.) Oct. 29, 1991, Vancouver Registry No. B903692 (B.C.S.C.) per Mr. Justice Drost: Proof of a regular system of business is prima facie proof that in a particular case the general system has been followed. From evidence concerning a regular system or practice, it may be inferred that at the time in question, that system or practice was being followed. [18] The question then becomes whether the system was reasonable or demonstrates a want of reasonable care by the defendants' as occupiers of the premises. [19] The pertinent provisions of the Occupier's Liability Act are: 3(1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person . . . on the premises . . . will be reasonably safe in using the premises. (2) The duty of care referred to in sub-section (1) applies in relation to the (a) conditions of the premises; (b) activities on the premises; or (c) conduct of third parties on the premises. [20] The duty is not absolute: "an occupier is not an insurer" (see Fry v. Confederation Life Insurance Company et al, (Unrep) May 25, 1989, Vancouver Registry No. C875590 (B.C.S.C.)). [21] In Beaman v. Canada Safeway Limited, (Unrep) November 12, 1993, Saskatoon Registry No. 3377 (Sask. Q.B.) Mr. Justice Lawton expressed the standard as follows (at pp. 6-7): Constant surveillance and instant response might very well prevent such an accident, but such a high standard is not required. The Defendant is not obliged to have his employees standing around to observe or follow each customer and instantly sweep up after those who spill items on the floor. Unrealistic procedures are not required. Reasonableness is the standard, not perfection. [22] The evidence before me, which I accept, is that the defendants had a system of regular cleanings in place, which were supplemented on an as-needed basis from time to time. The evidence of the plaintiff's that the store was "messy" is difficult to asses by reference to any "reasonable" standard. The produce department, which they suggest was notably messy, had been cleaned according to the log at 6:25 pm and again at 7:00 pm. The area where the accident actually happened had been regularly cleaned and was subject to the overlapping review of Mr. Penner. [23] Taking the evidence, all in all, I am satisfied that the defendants have established that they had a reasonable system in place. The plaintiff has not carried the burden of establishing that the accident, while certainly unfortunate, occurred as a result of any negligence or want of care on the part of the defendants. The defendants' motion is therefore granted and the plaintiff's claim is dismissed with costs. "T.M. McEwan, J." The Honourable Mr. Justice T.M. McEwan Nelson, B.C. March 3, 2000 March 28, 2000 -- Corrigendum to the Reasons for Judgment issued by Mr. Justice T.M. McEwan advising that the date stamped on the document is incorrect. It should read be: "March 3, 2000".