Consider opting for trial by jury instead of a judge in occupier’s liability cases: defence counsel

Insurance defence counsel should opt for a trial before a jury instead of a judge in occupier’s liability cases, according to a Dutton Brock lawyer commenting on an Ontario court decision in Lawson v. Costco Wholesale Canada Ltd.
The case “can be taken for the proposition that, in trying occupiers’ liability cases, defence counsel should opt for a trial before a jury, as laypersons are known to better appreciate the distinction between a ‘reasonable’ standard of care versus one of perfection,” Alex Proulx of Dutton Brock wrote for the law firm’s Fall 2010 edition of db Guide.
In Lawson, a 69-year-old grandmother slipped at a Costco store on a piece of lettuce that had detached from the bunch. She received $30,000 for pain and suffering, $8,000 in special damages and $10,000 in future care costs.
The trial was before a judge alone, Ontario Superior Court Justice John F. McGarry, who found that Costco had not met a reasonable standard of care.
McGarry found that although Costco did have extensive training, policies and procedures in place to monitor security within the store, there were discrepancies in whether Costco had properly used its daily maintenance checklists to ensure the premises were reasonably safe for its customers.
For example, the employee who completed the incident report about the plaintiff’s fall stated he had cleaned up the floor at the time of the incident, and yet the floor walk checklist indicated that no walk had taken place at that time.
“There are a few lessons to be learned from this judgment,” Proulx wrote. “First, detailed and accurate logs are vital to a successful defence in a slip and fall accident – of course assuming they are diligently filled out.”
The second was to consider asking for a trial by jury instead of a lone-sitting judge.