IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130820

Docket: 12‑1169

Registry:
Victoria

Between:

Genevievre
Madeleine Fulber

Plaintiff

And

Browns Social
House Ltd. and
Rumpel Investments Ltd.

Defendant

Before:
The Honourable Madam Justice Gray

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: Ms. Fulber fell on February 19, 2011, at the
restaurant premises of the defendant, Rumpel Investments Ltd., which I will
refer to as "Rumpel".

[2]            
Ms. Fulber broke bones in her ankle, and I will say more about her
injuries shortly. She sued both Rumpel and Browns Social House Ltd. for
damages, claiming breach of the Occupiers Liability Act, R.S.B.C. 1996,
c. 337, and negligence. Her claim against Browns was dismissed by consent.

[3]            
Rumpel is the operator of a franchise known as the Browns Social House restaurant
in Victoria, B.C., and that is where Ms. Fulber was injured. Rumpel has
applied to have Ms. Fulber’s claim dismissed pursuant to the summary trial
rule, which is Rule 9‑7 of the Supreme Court Civil Rules. Rumpel
argued that the evidence shows that Ms. Fulber cannot establish that there
was any liquid or other substance on the floor which caused her fall, and that
therefore she cannot establish that any unsafe conditions caused the accident.

[4]            
Ms. Fulber is opposed to a determination of the case under the
summary trial rule at this time.

[5]            
Mr. Aiyadurai, her counsel, argued that it would be premature to
decide the issue of liability at a summary trial now and argued that Ms. Fulber
ought to be able to pursue other investigations.

[6]            
Rumpel concedes that it is an occupier under the Occupiers Liability
Act. Rumpel also concedes that it owed a duty to Ms. Fulber as a
patron of the restaurant to take the care required under the Occupiers
Liability Act. Rumpel argued that there is no evidence that Ms. Fulber’s
fall was caused by any act or omission of Rumpel.

[7]            
Ms. Fulber was a patron of the restaurant on Saturday night,
February 19, 2011. It was Ms. Fulber’s fifth visit to the restaurant and
the restaurant had been open for about eight months. Ms. Fulber was 28
years old. She was at the restaurant for about three hours before the accident,
and during that three‑hour period she drank three glasses of wine. About
halfway through the three hours that she was in the restaurant, she went
outside the premises to smoke a cigarette, and her route both going outside and
returning to her table took her past the spot where she ultimately fell.

[8]            
She was wearing high‑heeled shoes with a stiletto heel four-and-a-half
inches high and a plastic sole. Ms. Fulber had purchased the shoes about
six weeks before the accident.

[9]            
The restaurant floor was hardwood and it was not waxed. There were
places where there was decorative mosaic tile, but apparently not at the spot
that Ms. Fulber fell.

[10]        
Ms. Fulber fell in an area near the bar and the bar servery. On my
very rough estimate, it was about six feet from the servery part of the bar and
about four feet from the edge of the bar, but those dimensions are not in
evidence. There is a floor plan in evidence.

[11]        
Ms. Fulber did not notice anything on the floor before she fell. Not
surprisingly, she did not notice anything on the floor after she fell either. She
did not notice anything on her shoes or her clothes and did not feel any
dampness on her bare skin. She deposed that she slipped on something, but from
her answers on examination for discovery, it is clear that Ms. Fulber’s
belief is based on inferences which she has drawn, based essentially on the
fact that she fell.

[12]        
I will read Question 532 and part of 533:

532   Q         I
think you’re telling me that you don’t have any information to indicate there
was a spill or any foreign substance; is that right?

 A         I’d
— yeah, I — I feel that there was something there that I slipped on, but no I
don’t evidence to say that it was water or it was a lime wedge or it was juice
or a drink or anything.

533   Q         The
reason you suspect is just because you slipped; is that right?

 A          M’mm‑hmm.
Yeah

That is as much as I will read.

[13]        
The evidence included an affidavit from a server named Ms. Walker,
who served Ms. Fulber’s party. I am just going to read quickly paragraphs
5 through 8:

5.         I did not see Ms. Fulber fall, but I saw her on
the ground afterwards. I did not observe any spillage in the area of the
Plaintiff’s fall, either before or after she fell.

6.         I traversed the area in which Ms. Fulber fell many
times during my shift on the day of the accident, before the Plaintiff fell. I
repeatedly walked through that area during my shift, multiple times per hour.

7.         My practice while working at Browns was to
constantly survey the floor for spills or debris and to clean up any spills
immediately. I was mindful of the state of the floor not only for the safety of
customers, but also for my own safety as I traversed the floor frequently while
carrying food and beverages.

8.         If I had noticed a
spill on the floor prior to or after Ms. Fulber’s fall I would have cleaned it
up immediately or called someone else to do so.

[14]        
Mr. Rumpel, who is one of the owners of the restaurant, was the
manager on duty that night. A bartender drew his attention to the fact that a
woman had fallen and Mr. Rumpel went to Ms. Fulber’s side. He
crouched beside her. His evidence is that he did not notice anything on the
floor at that time, although he did not at that time do a close inspection. His
evidence is that he did not see or feel any moisture or foreign material on Ms. Fulber’s
clothing or her person.

[15]        
Mr. Rumpel helped Ms. Fulber outside and was assisted in doing
that by Ms. Fulber’s sister.

[16]        
Plaintiff’s counsel argued that there was a conflict in the evidence
about how long Mr. Rumpel stayed outside with Ms. Fulber. Mr. Rumpel
estimated that he was outside with her about one-and-a-half minutes, but on
examination for discovery he testified that it could have been longer and he
did not have a stopwatch with him. In contrast, Ms. Fulber’s evidence is
that Mr. Rumpel stayed outside with her for five minutes.

[17]        
Mr. Rumpel’s evidence is that after he went outside with Ms. Fulber,
he returned to the restaurant and crouched down and inspected the floor in the
area of her fall and saw no spillage or any problem with the floor. Mr. Rumpel
deposed that he has not received any report from his staff or anyone else that
there was a spill in the area of Ms. Fulber’s fall. Mr. Rumpel also
deposed that, to his knowledge, no one witnessed Ms. Fulber’s fall.

[18]        
The only evidence on this summary trial application about Ms. Fulber’s
injuries is her evidence. She deposed that she has had three surgeries, one on
the evening of the accident and two subsequently. The evidence also shows that
there are metal pins in her ankles, that she has significantly reduced the
amount of time she spends standing and running and jumping since the accident,
and that she has daily pain.

[19]        
I accept that Ms. Fulber’s claim for non‑pecuniary damages
could well be in the range of $45,000 to $55,000 or more, and I also accept
that she may have claims for the costs of future care and lost earning capacity.
In other words, I accept that Ms. Fulber suffered a significant injury in
this fall.

[20]        
Mr. Aiyadurai, counsel for Ms. Fulber, argued that a summary
trial was premature at this time. He argued that there should be further
investigations concerning the number of people in the restaurant compared with
its capacity, concerning whether anyone saw Ms. Fulber’s fall, concerning Mr. Rumpel’s
credibility, and concerning the training of the workers at the restaurant.

[21]        
The court’s summary trial procedure is designed to have cases decided on
the basis of written evidence without the need for a full trial and the related
expense and delay when that is appropriate. When one party applies for a
summary trial, if the other party seeks to pursue further investigations, that
party should make those investigations or at least commence them prior to the
summary trial.

[22]        
Now, in this case, Ms. Fulber’s application response includes this
paragraph 20:

Further, there are identified
parties who may be able to provide direct evidence of what caused the slip and
fall. These parties include all those who attended the Premises and all those
who worked at the Premises on the night the plaintiff slipped and fell. These
parties need to be interviewed, examined by way of discoveries, and/or called
as witnesses to give viva voce evidence at a full trial.

[23]        
Plaintiff’s counsel conducted an examination for discovery of Mr. Rumpel
in April 2013. Defence counsel had already advised plaintiff’s counsel that the
defence would be applying for a summary trial. Mr. Rumpel was asked the name of
the bartender and gave the name. Mr. Rumpel was asked whether the
bartender saw Ms. Fulber’s fall and said that to his knowledge no one saw
the fall. There were some questions outstanding from Mr. Rumpel’s
examination for discovery and answers were provided by letter dated July 9,
2013.

[24]        
Plaintiff’s counsel has not apparently taken any steps to pursue
evidence from the bartender or any other employees of the restaurant. The
accident, as I have said, occurred about two and a half years ago. There is
simply no reason to think that there is some eyewitness out there who saw Ms. Fulber
fall or who saw a substance on the floor in the area before she fell.

[25]        
The parties disagree about whether Rumpel had a reasonable system in
place to protect patrons from slipping and falling. It is not necessary for me
to make a finding about that. For the purposes of my analysis today, I will
assume that Rumpel’s systems were unsatisfactory.

[26]        
I am now going to refer to some law concerning what Ms. Fulber must
establish to obtain damages from Rumpel.

[27]        
As lawyers know, this is not a situation where there is what we call
strict liability, meaning a situation where an injured person is entitled to
receive damages without proving fault. This is a case where an occupier’s
liability analysis applies.

[28]        
A useful summary of the law is set out in Wilde v. The Cambie Malone
Corporation, 2008 BCSC 704. I accept Ms. McCullagh’s summary of that,
and I am just going to read her summary of some of the principles stated in the
Wilde case:

(a)        The goals of the Occupiers Liability Act
are to promote positive action on the part of occupiers to make their premises
reasonably safe.

(b)        The duty imposed by the Act is to take
reasonable care in the circumstances to make the premises safe. The duty does
not require occupiers to ensure that persons using the premises will be
absolutely safe.

(c)        The care that must be taken by an occupier
differs according to the nature and use of the premises.

(d)        The onus is on the plaintiff to prove on a
balance of probabilities that the defendant breached this duty of care. The
fact of injury does not create a presumption of negligence. The plaintiff must
be able to point to some act or failure on the part of the defendant which
resulted in the injury.

(e)        This duty of care
does not extend so far as to require the defendant to remove every possibility
of danger. The test is one of reasonableness, not perfection.

[29]        
I will also quote a statement in Bauman v. Stein, [1991] 78
D.L.R. (4th) 118.

…the Occupiers Liability Act
does not create a presumption of negligence against "the occupier of the
premises" whenever a person is injured on the premises. A plaintiff who
invokes that section must still be able to point to some act (or some failure
to act) on the part of the occupier which caused the injury complained of
before liability can be established.

[30]        
I will quote from the decision of Mr. Justice Cohen in Van Slee v.
Canada Safeway Limited, 2008 BCSC 107 [Van Slee], at paragraph 31. He
wrote:

[A] plaintiff must prove: first,
what condition or hazard caused her slip and fall; and, second, that the
condition or hazard existed due to a breach of duty by the defendant

[31]        
I was referred to a number of authorities. I will refer to some of them.
One is Charlie v. Canada Safeway Limited; I was referred to both the
trial decision and the Court of Appeal decision. The trial decision of Mr.
Justice Parrett is indexed at 2010 BCSC 618 and the Court of Appeal decision at
2011 BCCA 202. The case was a summary trial application where a plaintiff’s
claim was dismissed. She fell near a flower display in a Canada Safeway store. In
the course of falling, she knocked over the display and so she noticed that she
was in a puddle of water after the fall.

[32]        
In that case, the Supreme Court decision was upheld and the Court of
Appeal concluded that the plaintiff could not establish the existence of water
on the floor at the time she fell. Therefore, she had not proven the existence
of a hazard that caused her to slip and fall, and the Court of Appeal upheld
the dismissal of her claim.

[33]        
In Van Slee, again, a woman fell in a Canada Safeway store.
She said in her affidavit that she was certain she must have slipped on water
which had accumulated in front of the customer service desk. She said she had
been outside in rainy weather, and that in fact she had been wearing a hood
because of the extent of the rain. In that case, the court concluded that she
had not proven that there was a hazard of water which caused her to slip and
fall, and her claim was dismissed.

[34]        
The other case I want to refer to is Burnett v. Canada Safeway, [1983]
B.C.J. No. 1073. In that case, the court drew the inference that there had been
water on the floor from an employee spraying vegetables in the produce
department. The court referred to evidence that water on the floor would not
have been visible. In that case, the court did draw the inference that there
was water on the floor that caused the fall. The plaintiff had been wearing
what Madam Justice MacKenzie said at paragraph 5 women would term "sensible
shoes", with a broad heel that was not excessively high. She was also
pushing a grocery buggy that would have given her some support.

[35]        
As a result of reviewing these cases, I am satisfied that, to succeed in
claiming damages from Rumpel for the fall, Ms. Fulber must demonstrate
that there was a hazard on the floor, being either liquid or some other foreign
substance, which caused her to slip, and also that Rumpel did not take
reasonable steps to ensure that such a hazard would not exist.

[36]        
I will now talk about some further areas of investigation that
Mr. Aiyadurai suggested should be pursued. First, he talked about
investigation of whether there were more patrons in the restaurant than legally
permitted. He referred to a floor plan of the premises which set out the number
of seats at about 107 or 109. Mr. Rumpel was asked on examination for
discovery about the occupancy and he testified that 150 people, including
staff, were permitted. He testified that he could not know how many people were
in the restaurant at the time of the accident.

[37]        
I cannot see any basis for further investigation of this issue being
required before resolving the summary trial application. There was no
suggestion that the number of people in the premises caused the accident. This
is not a case where someone who was injured alleged that they were jostled by a
crowd or something of that sort. Further investigations about the number of
patrons in the premises will simply not establish what Ms. Fulber has to
demonstrate, which was that there was a hazard on the floor which caused her to
slip.

[38]        
Next, Mr. Aiyadurai referred to further investigations of others
who may have been on the premises that night. As I have said, Mr. Rumpel
deposed that he did not know of anyone who witnessed the accident.

[39]        
I am going to pause here and refer to the arguments about credibility. Mr. Aiyadurai
said that it would be necessary to cross-examine Mr. Rumpel. Mr. Rumpel
had deposed that he was only outside with Ms. Fulber for a minute and a
half, while she thought it was five minutes. I am not satisfied that that is a
contradiction of the nature and type which suggests that Mr. Rumpel’s
evidence should be rejected.

[40]        
In fact, having seen his discovery evidence that he conceded it might
have been longer than a minute and a half, I am not sure that there is a real
contradiction. People’s estimate of time, particularly when there has been an
accident, is variable and I am not satisfied that there is a realistic concern
about the credibility of Mr. Rumpel.

[41]        
As I have said, Mr. Rumpel deposed that he did not know of anyone
who witnessed the accident. The accident occurred about two-and-a-half years
ago. There is no reason to think that there is a witness out there who did not
come forward and tell either Ms. Fulber or one of her companions or
someone at the restaurant that they saw something. It is also remarkable that,
if there had been something on the floor, it would not have been noticed in the
period after Ms. Fulber left. I believe the accident was around 10:00 or
10:30 at night, and it is my expectation that the restaurant was open later
than that.

[42]        
As is evident from the evidence of the server which I read aloud earlier,
if one of the workers had noticed something on the floor, it would be
surprising if they had not taken steps to clean it up – not only for the safety
of other customers, but also for their own safety in carrying food and
beverages.

[43]        
There is no realistic basis to imagine that Ms. Fulber would find a
witness who either saw her fall or saw something on the floor just prior to her
fall which would enable her to prove her claim.

[44]        
Mr. Aiyadurai also referred to investigating the slip coefficient
of the floor. The floor has apparently not changed since the restaurant opened.
There was no suggestion that Ms. Fulber has retained an expert to examine
this. There is no reason to think that an unwaxed wooden floor is unreasonably
safe. This does not provide an adequate basis for adjourning the summary trial
application to permit Ms. Fulber to pursue the coefficient of slippage of
the floor.

[45]        
Mr. Aiyadurai suggested other avenues of investigation which would
be directed to whether Rumpel had a system in place to protect from spills of
liquids and other foreign substances. While one of the things that Ms. Fulber
would have to prove to establish liability is that Rumpel did not have an
adequate system in place, as I have said, Rumpel focuses its application on the
absence of any evidence that there was a hazard on the floor which caused Ms. Fulber’s
fall. As I have said, I was prepared, for the purposes of this analysis, to
assume that it was an inadequate system.

[46]        
After considering all of this, I am not satisfied that it is necessary
to adjourn the summary trial application to enable Ms. Fulber to make more
investigations. There simply is no reasonable basis to think that she would
find any helpful evidence.

[47]        
I am able to find the facts necessary to decide the case and it would
not be unjust to resolve the case now.

[48]        
The evidence does not establish that there was any hazard on the floor
that caused Ms. Fulber to fall, whether it was a liquid or another foreign
substance. Neither does the evidence give rise to a reasonable inference that
there was liquid or another foreign substance on the place that Ms. Fulber
fell.

[49]        
While the place that she fell was relatively close to the bar, it was a
matter of feet from the serving area. It is highly unlikely that a drink would
slosh all the way from the serving area to that area on the floor. While it may
be possible that there have been times that some liquid has fallen in the place
where Ms. Fulber fell, on all the evidence I must conclude that there was
not a hazard in the place where Ms. Fulber fell.

[50]        
As a result, I must allow Rumpel’s application. I find that Ms. Fulber
has failed to establish that Rumpel is liable for the injuries from the fall
and I must dismiss her claim.

[51]        
Rumpel is entitled to its costs.

“Gray
J.”