Careful Not to Slip

A recent Ontario Court of Appeal decision in a slip-and-fall case demonstrates the importance of a commercial retailer being able to show a jury that it had a system in place and had taken all reasonable steps to minimize a customer’s risk of injury.

In this respect, Kerr v. Loblaws Inc., decided in May 2007, is of interest to risk managers, because the court provides some insight into how to minimize the risk of litigation against commercial clients.

KERR V. LOBLAWS INC.

The Trial

In April 2002, 80-year-old Clara Margaret Kerr slipped and fell on a grape while she was shopping in the produce department of a Zehrs grocery store.

Kerr strained her knee and broke her ankle in three places. She underwent surgery on her ankle and was hospitalized for about eight days. Thereafter, she convalesced in a nursing home for six weeks and participated in physiotherapy for two-and-a-half months. Although the outcome of her surgery was positive, Kerr maintained that her injuries had caused a dramatic decline in her mobility and had significantly reduced her quality of life. Kerr and her three daughters sued Loblaws Inc, the owner of Zehrs.

Loblaws did not dispute at trial that Kerr slipped and fell on a grape in the produce department. It denied liability, however, on the basis that it had taken reasonable steps to see that its customers were reasonably safe on the store premises. Loblaws also argued that Kerr’s injuries were occasioned by a constellation of pre-existing and deteriorating medical conditions and events unrelated to this fall.

Kerr’s negligence claim against Loblaws was based on the status of Loblaws as an occupier of the Zehrs store. Section 3 of the Occupier’s Liability Act provides:

* (1) an occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises;

* (2) the duty of care provided in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

* (3) the duty of care provided for in subsection (1) applies except in so far as the occupier of the premises is free to and does restrict, modify or exclude the occupier’s duty.

Although Zehrs’ floor care policy manual provided for the use of floor mats in front of grape displays to minimize the potential for accidents, floor mats were not in front of the grape display on the day Kerr fell. Also, the store manager who had testified at trial had not reviewed the manual.

Zehrs’ policies require the use of a “sweep log” to document floor inspections and maintenance in the produce department. A sweep log was in use in the produce department, but no schedule for the conduct of hourly floor inspections was in place. The log entries for the morning of the accident documented floor inspections in the produce department at 8:00 a.m. and 10:00 a.m. — prior to Kerr’s fall — and again at 12:10 p.m., shortly after her fall. The log indicated loose grapes were picked up from the floor at 8:00 a.m. Other produce, located in an area of the produce section some distance from where Kerr fell, was picked up during the inspection at 12:10 p.m. However, no grapes or other produce were discovered on the floor in the area of the grape display at that time.

The defendant relied on Kerr’s evidence of her position at the time of the accident — two steps away from her shopping cart and the grape display — to argue that the presence of a floor mat by the display would not have prevented or minimized the potential for her accident.

The jury concluded the defendant had taken such care as was reasonable under the circumstances to see that Kerr was reasonably safe while on the store premises. The jury assessed Kerr’s total damages at Cdn$58,300. In accordance with the jury verdict, Ontario Superior Court Justice Michael Brown dismissed the action in his judgment of Apr. 20, 2006.

The Appeal

Ontario Court of Appeal Justices Eleanore Cronk, John Laskin and Susan Lang dismissed Kerr’s appeal on May 16, 2007. Cronk, writing for the court, concluded that the judge’s charge to the jury properly identified the issues, the applicable legal principles, the evidence on the key questions of the standard of care owed by the defendant and whether the standard was met in the circumstances of this case. Once the trial judge explained the relevant standard of care, it was unnecessary for him to embellish that standard by providing specific examples of how the standard was applied in other cases, Cronk wrote.

The Appeal Court ruled the jury verdict at trial was not unreasonable on the following bases:

* the jury could rely on trial evidence indicating the defendant took reasonable steps to ensure that the floor of the produce department was clean and clear of debris and fallen produce. Also, there was evidence the defendant had a detailed floor maintenance program in place, consisting of recorded inspections and regular employee checks and cleaning of the produce department floors;

* there was evidence that the defendant’s produce department employees actually checked the floors and removed any fallen items on a regular basis;

* there was no suggestion that accidents from fallen grapes was a recurring issue at this store, or that the store employees treated their maintenance and inspection duties as an ad hoc or casual requirement; and

* the fact that floor mats were not in use in front of the grape display on the day of the accident was one factor, among many, to be considered by the jury; it was open to the jury to determine what weight should attach to this omission.

Loblaws was represented by David H. Lauder at trial, and by Lauder and Gillian B. Eckler on the appeal.

POST-DECISION: WHAT IT ALL MEANS

Lauder, a partner at Toronto’s Dutton Brock, observes that although documentation such as sweep logs is the best evidence to show what steps were taken to maintain the store, the Court of Appeal made it clear the verbal testimony of employees can also be used as evidence.

For Lauder, Kerr v. Loblaws sends a key message to risk managers and insurers alike; namely, the importance of loss prevention. After a claim happens, Lauder advised, insurers should make sure the stores have a security guard or store manager available to take photographs, document the injuries, document the location, and take statements from any independent witnesses and store employees. This should be done “at the moment, and not three months after the fact as you try to put the pieces of the puzzle back together,” he says.

Kerr v. Loblaws reinforces existing law established by the Supreme Court of Canada in Waldick v. Malcolm, a 1991 homeowner case, Lauder said. “There is no separate or higher standard for a retailer or grocery store,” Lauder says, comparing the result in Waldick with the decision in Kerr. “It’s the same standard under the Occupier’s Liability Act.”

Grocery stores aren’t guarantors of peoples’ safety, Lauder says. Their obligation is to take reasonable steps to make sure that people are reasonably safe. He calls this “the double reasonableness standard.”

Kerr’s accident happened in a store in Barrie, Ontario on a Monday morning, according to Lauder. Trial evidence suggested Mondays and Tuesdays were the slowest days in terms of retail shopping. While that doesn’t mean that the store didn’t have a duty to check the floors regularly, Lauder thinks the lack of traffic allowed “some leeway” for the store: the store’s goal is to do an inspection every hour; on this day, however, they recorded an inspection every two hours. Nevertheless, employees had done inspections that they didn’t mark down in the log. That is why it was impo
rtant for the court to hear from the actual employees. These employees were “proud of their jobs and the fact that they would go up and down the aisles and pick up whatever they saw, but they wouldn’t necessarily go to the back of the store and mark it in a sweep log,” Lauder says.

The store manager, assistant store manager, and a produce department clerk who was working at the store on the day of the accident all testified at trial, according to Lauder.

Ian D. Kirby, a partner at Toronto’s Gilbert, Wright and Kirby, says risk managers are not doing anything potentially harmful, and are not making any admissions of liability, by creating standards within the industry — standards, for example, about things that ought to be done, like placing mats in front of the produce section. Just because standards are established and employees don’t always adhere to them, this will not necessarily be a basis for a finding of liability in a negligence case, Kirby says. “There’s a good social policy reason for that, because our legislature and our courts want to encourage individuals and corporations and industries to provide a good measure of protection for the public,” Kirby says. Just because an occupier was found liable last week for having less than perfectly safe premises “does not necessarily translate in a jury trial to a similar finding the following week,” according to Kirby. Each case is fact-specific, he says.

Kerr highlights the importance of protecting your client’s position for appeal by raising your objections to the judge’s charge to the jury at the trial, according to Kirby. If you don’t do that, “while it’s not dispositive, it’s certainly a huge hill to get over,” he says.

How important are the judge’s instructions to the jury? According to Todd J. McCarthy, a partner at Toronto’s Flaherty Dow Elliott & McCarthy, “the jury result is wildly unpredictable and what goes into the jury verdict may be a myriad of inferences that they draw from the evidence that a judge alone may not draw, even applying the same law. In other words, you can have a charge to the jury that reads like the same test a judge would set out in his or her reasons for judgment, yet the result may be diametrically opposed to what a judge may do.”

Should the defence have a strong case on liability or on causation, electing to have a trial by jury is in most cases the best strategic option, says McCarthy. The standard of care that most jurors expect when they apply their common sense is “far from perfection,” McCarthy says. What is important, particularly in slip-and-fall cases, is to show the jury “a system, if not a perfect system, a system that has a plan to it, that is carried out” and that demonstrates to the jury reasonable care, McCarthy says. “Perhaps not perfect care, but reasonable care.”