Quinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.
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On March 1, 2008, Wanda Olivier, 81, and her husband drove the 237 km from Bruce Mines, Ont. to Sudbury for a very special occasion. It was a surprise birthday party for Wanda’s younger sister Jackie. Jackie was turning 80.
Wanda and her husband arrived at Pat and Mario’s Restaurant around 5 p.m. Wanda was excited that she would see her sister and take part in her birthday celebration.
The evidence at the trial revealed that Wanda was met at the restaurant entrance by her niece Vicky, as well as a hostess at Pat and Mario’s named Danika. Danika, who trailed behind the group, directed Wanda and the others through the dining room towards a “’back party room’” in which the birthday celebrations were taking place.
As they approached the “’back party room’” Wanda caught sight of her sister who was already seated. In her excitement, Wanda lost focus on her surroundings and failed to notice the large sign that warned guests: “Please watch your step.” The sign was placed to the right of a step leading up into the back party room.
Both Wanda’s niece and the hostess saw the step. Both her niece and the hostess warned Wanda to…“watch your step!”
It was of course exactly at that step where Wanda fell…hard. Wanda, as she lay on the restaurant floor was heard to utter, “I wish someone had of told me that there was a step”.
As a result of the fall, the 81-year-old Wanda suffered a broken right shoulder ,which required surgical intervention and ongoing treatment, including physiotherapy.
Wanda sued the restaurant for her injuries, and pain and suffering. She claimed that under the Occupier’s Liability Act, Pat and Mario’s had a duty: ”…to see that persons entering on the premises…are reasonably safe…”
What do you think? Did Pat and Mario’s do everything they could to make the restaurant “reasonably safe”?
Here’s what Pat and Mario’s did:
a) They had a hostess meet Wanda at the restaurant entrance and guide Wanda and her group to the back party room.
b) They placed a large sign at the step, clearly in sight, warning patrons to “please watch your step”.
c) They even had the hostess warn Wanda to “watch your step.”
What else could they have done? Carry her up the step?
Wanda and her lawyer had a different story to tell the court. They argued that:
a) What the hostess, Danika, should have done was led the way through the restaurant and up the step rather than give directions from the rear. Under those circumstances they argued, Wanda would not have fallen.
b) They also argued that Pat and Mario’s could have done more to draw attention to the step up, both by illuminating it with lights as well as placing reflective tape on the step.
Two good points!
The Judge heard both sides of the story and decided that, for the most part he preferred Wanda’s version. The Judge said that Wanda ”…was understandably excited about seeing her sister and celebrating her sister’s eightieth birthday with her.”
At the point in time when Wanda saw her sister, she ”…was not as diligent as she should have been nor could have been in watching where she was going and in my view, this lack of diligence contributed to her fall and the resulting damages and injuries that occurred to her.”
The judge assessed Wanda 25 per cent responsible for her fall and injuries.
On the other hand, Pat and Mario’s failed to meet the standard of care set out in the Occupier’s Liability Act. Their hostess, Danika, should have led the group to the back party room and up the step, and the step itself should have been more clearly lit.
In the end, it cost Pat and Mario’s over $38,000, plus the legal costs.
Lessons To Be Learned:
1) Everyone has a duty of care to guests and others who are in our house, our business, our cars and boats, practically everywhere, to keep them safe;
2) Each of us has a duty to take reasonable care that we don’t harm ourselves by our own inattentiveness or reckless behaviour, and then try to blame someone else for injuries that could have been avoided, had we taken care; and
3) There are always two sides to every story. Just because someone says your wrong doesn’t make you wrong. Check out your side of the story with a law firm that will tell your story for you…convincingly.
