Lavalee v. Port Haney Gourmet Ltd.

Citation: Lavalee v. Port Haney Gourmet Ltd. Date: 19990308 1999 BCCA 0174 Docket: CA024407 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT: Before: THE HONOURABLE MR. JUSTICE ESSON March 8, 1999 THE HONOURABLE MR. JUSTICE CUMMING THE HONOURABLE MR. JUSTICE HALL Vancouver, B.C. BETWEEN: MARY LAVALEE PLAINTIFF (RESPONDENT) AND: PORT HANEY GOURMET LTD. DEFENDANT (APPELLANT) W.N. Fritz appearing for the Appellant G. Hilliker appearing for the Respondent [1] CUMMING, J.A.: The appellant is the owner and occupier of a restaurant located in Maple Ridge, B.C. [2] On February 14, 1995 a snowfall of some 24 centimetres in depth accumulated in Maple Ridge. On February 16, the appellant hired a bobcat operator to clear the parking lot area at the restaurant. In addition, an employee of the appellant spread a mixture of sand and salt in the parking area. [3] The plaintiff and her companion arrived at the restaurant between 7:00 and 7:30 p.m. on February 16. After the plaintiff's companion parked his vehicle the two entered the restaurant where they dined, remaining approximately three hours. After dinner the plaintiff retraced her steps back to the car, but when she was at or near the passenger door she fell on a patch of black ice and was injured. [4] The plaintiff's action is brought in negligence and for breach of statutory duty pursuant to the Occupier's Liability Act, R.S.B.C. 1996, c.337. [5] The accident occurred on a day when there were obviously winter weather conditions prevailing. The defendant recognized the risks inherent in those conditions by making arrangements to have the parking lot cleared and a mixture of sand a salt spread on it. The presence of ice or black ice on paved services during winter weather conditions is common knowledge and was clearly recognized by the defendant, who decided to sand and salt the parking lot. [6] The learned trial judge found as a fact that the employee of the defendant did not spread the sand and salt sufficiently well to cover the area and prevent the formation of black ice where the plaintiff fell. The learned trial judge further found that the defendant's maintenance plan failed. [7] This case clearly turns on the specific findings of fact made by the learned trial judge. I am not persuaded that there is any overriding or palpable error on his part which led to those findings of fact. In these circumstances it is not open to this court to interfere. [8] I would dismiss the appeal. [9] ESSON, J.A.: I agree. [10] HALL, J.A.: I agree. [11] ESSON, J.A.: The appeal is dismissed. The Honourable Mr. Justice Cumming