13 Nov Slip and Fall in Restaurant
In Robinson v. 1390709 Alberta Ltd., 2016 BCSC 2459, the Plaintiff slipped and fell on the floor of the Defendant’s restaurant. The restaurant denied liability.
The Plaintiff and a friend had dinner at the restaurant prior to attending a local theatre production. There were two employees working in the restaurant when they arrived. Shortly after they entered the restaurant, one employee disappeared into the back. The Plaintiff and her friend ordered their meals and then sat down at a table near the front door. Their meals were delivered to them by the other employee.
After the Plaintiff and her friend had finished their meals, they got up from their table and began walking towards the front door. There were no other customers in the restaurant at the time. The Plaintiff was about five feet from the door when she slipped and fell onto the floor. While she was on the ground, she immediately complained of pain in her knee. The employee behind the counter asked if the Plaintiff was okay. She replied that she had fallen and she was hurt. He replied “Oh,” and continued with his work. No employee came to offer assistance, first aid, or to help her get up. The Plaintiff did not attempt to identify what substance she slipped on. She was in a lot of pain and was focused on her welfare rather than the floor.
The Occupiers Liability Act, R.S.B.C. 1996, c. 337 (the “OLA”) governed this case. The restaurant was a “premises” and the Defendant was its “occupier” as those terms are defined in the Act.
Section 3 of the OLA sets out the statutory duty of care an occupier owes to someone entering its premises. The relevant portions of that provision read as follows:
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, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.
(2)The duty of care referred to in subsection (1) applies in relation to the:
(a) condition of the premises,
(b) activities on the premises, or
(c) conduct of third parties on the premises.
The Plaintiff said that there was a substance that was “slimy and thicker than a liquid” on the floor of the restaurant and that this substance was the cause of her slip and fall. While she could not say with precision what the substance was, she could say it was distinctly noticeable to her when she stepped on it.
The Defendant argued it was insufficient for the Plaintiff to say there was “something” on the floor that caused her to fall. According to the Defendant, the Plaintiff was asking the court to speculate what it was that caused her to fall.
In the Court’s opinion, that was not speculation or theorizing on the Plaintiff’s part. It was credible and reliable evidence that there was a foreign item or substance on the floor of the restaurant that created a potential hazard for its customers. In the Court’s view, that was sufficient and the Plaintiff need not have to prove the precise identity of the item or substance she slipped on.
The Defendant presented no evidence of who was working on the night in question. All that was clear was that there were two employees working at the restaurant when the Plaintiff fell and injured herself.
The Court found that no employee of the restaurant made any satisfactory effort to determine the state of the floor during the time the Plaintiff and her friend were present in the restaurant. In the Court’s opinion, they should have. Had they done so, they would have noticed the substance on the floor, likely a food item, that should not have been there and realized it created the risk of a slip and fall accident.
The Court was satisfied the Plaintiff has established a prima facie case that the Defendant breached the duty of care that it owed to her under the OLA.
Once a prima facie breach of the OLA is found, an occupier can legitimately defend itself against a claim for damages by convincing the Court that it had in place a reasonable scheme to prevent mishaps and that the scheme was being properly followed at the time of the accident.
According to the Defendant, it had in place a reasonable system for the inspection and cleaning of the restaurant on the date the Plaintiff fell. However, the Court found that the evidence of the Defendant’s inspection and maintenance program was insubstantial and unpersuasive. Whatever policies or systems were in place were not being properly followed or implemented. The employees received insufficient training and what little they did receive was not enforced to any noticeable degree. They had no discernible training on the need to regularly inspect and clean the floors of the restaurant to ensure there was nothing that could pose a potential risk to customers.
For all the forgoing reasons, the Defendant was found 100 percent liable for the Plaintiff’s slip and fall. This decision was upheld on appeal at Robinson v. 1390709 Alberta Ltd., 2017 BCCA 175.