ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11675/09
DATE: 2014/03/25
B E T W E E N:
Lori Souliere
Melissa MacLeod, for the Plaintiff
Plaintiff
- and -
Casino Niagara, Ontario Lottery and Gaming Corporation and Falls Management Company
Robert P. Budgell, for the Defendants
Defendants
HEARD at Welland, Ontario:
February 18 & 19, 2014
THE HONOURABLE JUSTICE J. R. HENDERSON
REASONS FOR JUDGMENT
INTRODUCTION
[1] On October 25, 2007 at approximately 7:20 p.m. the plaintiff, Lori Souliere (“Souliere”), slipped and fell in a buffet style restaurant known as the Market Restaurant located within Casino Niagara. In this action Souliere alleges that the defendants breached the standard of care set out in s. 3(1) of the Occupiers’ Liability Act, R.S.O. 1990 c. O.2 (“OLA”), and that she suffered injuries as a result of that breach.
[2] The defendants own and manage Casino Niagara and the businesses contained therein, including the Market Restaurant. The defendants acknowledge that they are occupiers of the premises within the meaning of the OLA. In this decision I will refer to the defendants collectively as “Casino Niagara” as there is no need to differentiate between them.
[3] The parties have agreed upon the quantum of damages, but have not resolved the issues of liability and causation. Casino Niagara denies that it breached the standard of care expected of it, and in the alternative submits that even if it did breach the standard of care, that breach was not the cause of Souliere’s slip and fall.
[4] Therefore, there are two broad issues, as follows:
i. Did Casino Niagara breach the standard of care set out in the OLA?
ii. If so, did Casino Niagara’s breach of the standard of care cause Souliere to slip and fall?
[5] Casino Niagara did not pursue its allegation of contributory negligence on the part of Souliere.
FINDINGS OF FACT
A. The Market Restaurant
[6] The Market Restaurant is a typical buffet style restaurant. It is divided into two sections; one section consists of several food stations where food is displayed, and the other section is a dining area where customers sit to eat and drink. The entire interior part of the restaurant, including the food station section and the dining area, has a tile floor.
[7] This is an “all you can eat” restaurant. A cashier’s station is located at the entrance/exit to the restaurant. Upon entering, a customer will pay a fixed price to the cashier, and thereafter a hostess will escort the customer to a seat in the dining area. In order to travel from the restaurant entrance to the dining area the customer must walk through part of the food station section.
[8] Once the customer is seated, the customer will serve him/herself from the food stations. That is, the customer will walk from the dining area to the food stations, pick up a plate, place food from the food stations onto the plate, and then carry the plate of food back to the dining area. The customer may return to the food stations as many times as the customer desires.
[9] Bussers are employed to remove dirty plates and cutlery from the tables, and to bring drinks to the tables. Line cooks are positioned at the food stations where they are responsible for cooking the food and restocking the food stations.
B. Souliere’s Activities
[10] Although there were inconsistencies in Souliere’s evidence regarding some issues, I generally accept Souliere’s testimony as to her activities that evening. Therefore, I find that Souliere and her uncle, George Kuzler (“Kuzler”), had tickets for a comedy show at Casino Niagara that evening starting at 8:00 p.m. They arrived at Casino Niagara at approximately 5:00 p.m. and walked around until they entered the Market Restaurant at approximately 6:00 p.m.
[11] Souliere and Kuzler both served themselves from the food stations and ate their meals at a booth in the dining area. After they had finished eating, at approximately 7:20 p.m., Souliere and Kuzler left their booth to exit the Market Restaurant. Souliere walked slightly ahead of Kuzler.
[12] In order to exit the restaurant Souliere walked approximately five steps from the booth to the edge of the food station section, at which point Souliere turned left to walk through the part of the food station section that led toward the exit. After taking about three more steps toward the exit, Souliere stepped in a greasy substance that was on the floor, slipped, and fell heavily.
[13] The location of Souliere’s fall was in the food station section near the dessert island. She was approximately 15 feet from the cashier’s station at the entrance/exit to the restaurant.
C. How did Souliere Slip and Fall?
[14] Paulette Culliford (“Culliford”) was working as a cashier at the cashier’s station that evening. She testified that she was standing at the cashier’s station looking into the restaurant when she witnessed Souliere’s fall.
[15] I reject Souliere’s testimony that Culliford was not looking into the restaurant at the time, and could not have witnessed her fall. I thought that Souliere’s evidence on this point was very unreliable. Souliere acknowledged that just before her fall she was looking straight ahead of her, and that her line of vision would not have included the cashier’s station until she turned the corner to head toward the exit. Almost immediately thereafter she fell. Therefore, Souliere would have had very little time to observe the cashier before she fell.
[16] Further, Souliere acknowledged that when she was leaving she had no reason to consider the circumstances of the cashier as she had already paid for her meal, and she was just walking toward the exit. Souliere’s inattention to the cashier’s station is illustrated by the fact that she was clearly wrong in her testimony that there were two cashiers standing at the cashier’s station. In fact, there was only one cashier on duty that evening.
[17] Still further, I found Souliere’s evidence with respect to peripheral details of this evening to be inconsistent as between her evidence on her examination for discovery and her evidence at trial. Consequently, I am not prepared to accept Souliere’s evidence with respect to the presence of, or activities of, Casino Niagara’s employees that evening.
[18] I found Culliford to be a very credible witness who presented her evidence in a confident and straightforward manner. I accept her evidence that at the time of this incident Culliford was not busy with a customer, and she was casually standing at the cashier’s station looking into the food station section.
[19] I accept Culliford’s testimony that shortly before Souliere fell, Culliford saw a man walking with a plate of food from the food station section to the dining area. Culliford observed a brown liquid substance fall to the floor from this man’s plate at approximately the spot where Souliere fell. The man kept walking out of Culliford’s field of vision toward the dining area.
[20] Then, approximately three seconds later, Souliere came out of the dining area and slipped and fell at the approximate spot where the substance had fallen on the floor.
[21] The parties agree that a brown greasy food substance was found on the floor in the area of Souliere’s fall, and that the same substance was also observed on Souliere’s right shoe after she had fallen.
D. Casino Niagara’s Inspection and Cleaning Policy
[22] Ted Bogale (“Bogale”), the supervisor on duty that evening, testified that Casino Niagara is aware that there will be food spillage in the food station section and in the dining area. Bogale testified that because the customers serve themselves, “food flies everywhere”.
[23] Casino Niagara’s policy was that all of the employees who were on duty at the Market Restaurant were responsible, in part, for monitoring the restaurant for food spillage and for cleaning any food spillage that was observed. There was no single employee whose sole job was to be responsible for cleaning the floors or inspecting for food spillage. Rather, all of the employees who were on duty were directed to monitor for food spillage and clean up any spills.
[24] There was no policy for regularly cleaning or sweeping the floors as a whole while the restaurant was open for business. However, all of the floors were cleaned every night after the restaurant was closed.
[25] On the evening in question, at the time of Souliere’s fall, I find that the Casino Niagara staff on duty at the Market Restaurant included two hostesses, five bussers, five line cooks, and one supervisor.
[26] The bussers are each assigned responsibility for cleaning a specific area in the dining area, and the hostesses are assigned responsibility for the food station section. However, the bussers and the hostesses are regularly walking throughout all areas of the restaurant. I accept Bogale’s evidence that all of the hostesses and the bussers are trained, as part of their duties on each shift, to be on the lookout for food spillage wherever they may be in the restaurant, and clean the spillage as soon as possible.
[27] I also accept the evidence that the line cooks who are in charge of the food stations are also trained to be responsible for the cleanliness of the areas around their food stations. Part of their job involves regularly coming out from behind the food station in order to clean the station and to look for and clean any food spillage on the floors around the food station.
[28] On the evening in question Bogale was the supervisor for the 3:00 p.m. to 11:00 p.m. shift. During that shift Bogale was supervising three different restaurants. I accept Bogale’s evidence that the Market Restaurant was the busiest of the those three restaurants, and that he spent approximately four hours out of his eight hour shift at the Market Restaurant.
[29] While he was at the Market Restaurant I accept that Bogale patrolled the restaurant to ensure that it was running smoothly. His duties involved checking for such things as whether the lights were working, and whether the heating or air conditioning was working. Included in his duties was the responsibility to check for food spillage and to clean any spillage that he observed.
[30] There are two bussing stations and one hostess station in the restaurant. Each of those stations is equipped with sanitizer bottles, cloths, a broom, and a dustpan. I accept Bogale’s evidence that the hostesses and the bussers are trained to use the equipment from these stations to clean any food spillage they observe. Also, I accept that there are “Wet Floor” signs at the stations that are to be put in place if the spill cannot be cleaned quickly.
[31] Lastly, Culliford was the cashier who was positioned at the cashier’s station at the entrance/exit to the restaurant. The cashier’s responsibility regarding food spillage was different than the responsibilities of the other employees. Specifically, if the cashier saw any food spillage the cashier was responsible for reporting that spillage to the hostess, or in the alternative to a busser. The cashier was not responsible for cleaning the spillage.
DID CASINO NIAGARA BREACH THE STANDARD OF CARE?
[32] Section 3(1) of the OLA reads as follows:
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.
[33] This section has been interpreted to mean that there is a positive duty on occupiers to take such care as in all the circumstances is reasonable to make the premises reasonably safe for persons entering them. However, that duty is not an absolute one. See the case of Waldick v. Malcolm (1989), 1991 8347 (ON CA), 70 O.R. (2nd) 717 (O.C.A.), affirmed 1991 71 (SCC), [1991] 2 S.C.R. 456.
[34] The liability analysis regarding any slip and fall in a public place revolves around the issues of whether the occupier had in place reasonable policies and procedures for the inspection and maintenance of the premises, and whether those policies and procedures were actually followed. In that respect I adopt the comments of Campbell J. in the case of Dhaliwal v. Premier Fitness Clubs Inc., 2012 ONSC 4711, at para. 25.
[35] Further, the liability analysis is fact driven and varies from case to case. Premises in which there is a higher risk of spillage require more vigilant policies and procedures. I adopt the comments of Lax J. in the case of Chan v. Erin Mills Town Centre Corp., [2006] W.D.F.L. 273, at para. 43.
[36] Therefore, in the present case I find that Casino Niagara is not required to ensure that there is no food spillage at the Market Restaurant. Rather, the question is whether Casino Niagara has taken reasonable care to make the Market Restaurant reasonably safe for its customers, considering that a buffet style restaurant will result in regular food spillage throughout the restaurant.
[37] The plaintiff generally relies on decisions that deal with food spillage from grocery store produce areas. In particular, the plaintiff relies on the decisions in Lawson v. Costco Wholesale Canada Ltd., 2010 ONSC 360, and Davis v. Kin’s Farm Market (Lynn Valley) Ltd., 2010 BCSC 677.
[38] In the Lawson case the defendant operated a large store that sold dry goods, produce, and groceries. Produce was displayed for sampling in parts of the store. A piece of lettuce from one of the display areas fell onto the floor, and the plaintiff slipped on the lettuce. McGarry J. found that the inspection policy of the defendant was inadequate under the circumstances.
[39] In the Davis case the defendant operated a produce store in which fruit and vegetables were displayed in bins or on tables. The plaintiff slipped and fell on a grape that had fallen from a display area onto the floor. Bruce J. in that case found that the inspection and cleaning policies of the defendant were inadequate.
[40] Based on these cases, Souliere submits that Casino Niagara has breached the required standard of care by:
(1) Failing to employ a person whose primary or sole duty was to inspect and clean the restaurant floors,
(2) Failing to have a policy of sweeping or cleaning the restaurant floors at regular intervals while the restaurant is open, and
(3) Failing to place non-slip mats in the vicinity of the food stations.
[41] Counsel for Souliere also suggested that the low to moderate lighting in the restaurant was inadequate. However, I find that allegation to be without merit as there was no evidence that Souliere, or anyone, had any difficulty with vision that evening. Moreover, the pleadings do not contain any allegation that the lighting on the premises was inadequate.
[42] As to the allegation that Casino Niagara should have used non-slip mats, this allegation also was not raised in the pleadings, and therefore this allegation should fail for that reason alone.
[43] However, even if the issue of non-slip mats was properly before the court, I find that this allegation is without merit. In my opinion, the circumstances at the Market Restaurant are very different from the circumstances in the grocery store produce cases. In the grocery store cases there were certain specific areas where loose produce was on display, and where spillage regularly occurred. In those grocery store cases, non-slip mats may have been helpful and appropriate in the vicinity of the produce displays.
[44] At the Market Restaurant food is carried by customers on plates from any of the food stations to any of the other food stations, and then to the dining area. Therefore, food is carried by customers on plates literally throughout the entire restaurant. Thus, spillage occurs regularly in all areas of the restaurant. In cross-examination, Bogale testified, and I accept, that spills were more common in the dining area than the food station section.
[45] If Casino Niagara were required to place non-slip mats in the areas were food might regularly fall, that would mean that Casino Niagara would be required to cover the entire restaurant floor with non-slip mats. In my view, that would be impractical and inappropriate for a business that relies on maintaining a certain pleasant ambiance for its customers.
[46] This point is illustrated by the fact that Souliere fell in a spot at the edge of the food station section; not immediately beside a food station. There was no evidence of precise distances, but the photographs suggest that Souliere fell approximately five to six feet from the closest food station, the dessert island. In Souliere’s examination for discovery she said that she fell five feet away from the path that people walked with food on their plate. Therefore, I find that if non-slip mats had been placed immediately beside the food stations, those mats would not have covered the part of the floor on which Souliere fell.
[47] Moreover, I accept the evidence of Bogale that non-slip mats were not used by the Market Restaurant because in his view they created a tripping hazard. That evidence was uncontradicted.
[48] This brings me to Casino Niagara’s policy for inspecting and cleaning the restaurant floor. The policy is not one that requires a specific person to be responsible for the maintenance of the floors. Rather, the policy makes each employee who is on duty generally responsible for inspecting and cleaning the floors, as part of that employee’s overall duties. This type of system has been criticized in other decisions. For example, Bruce J. in the Davis decision wrote at para. 38: “I find that reliance on the powers of observation of busy employees falls short of the standard of reasonableness in the circumstances.”
[49] However, as discussed in the Lawson decision at para.15, occupiers are required to tailor their policies and procedures to the particular circumstances of the premises. What is required to meet the standard of care will depend on the circumstances; what meets the reasonableness standard in one situation may fall short in another. That is, the standard of care is a flexible one that must be applied in the context of the nature of the premises and the activities carried out therein.
[50] In the present case, the Market Restaurant case is a busy place and food spills occur regularly. But, the restaurant itself is a relatively small space, staffed with many employees during its busy hours. At the time of Souliere’s fall there were 13 employees on duty, comprised of two hostesses, five cooks, five bussers, and one supervisor. All of these 13 people were generally moving about the entire restaurant. Each of those employees had, as part of their duties, the responsibility of monitoring the floor for food spills. In my view, no food spill would go unnoticed for any significant length of time. Therefore, assuming that each of these employees was doing their job, any food spillage would be noticed within a short time of its occurrence, and cleaned promptly thereafter.
[51] As to whether the employees were in fact following Casino Niagara’s policy, I heard no specific evidence from the hostesses, bussers, or cooks as to whether they were vigilantly monitoring for food spills. Further, the checklist prepared by the supervisor that was tendered as an exhibit was vague and flawed.
[52] However, the evidence before me is that the restaurant floor was clean. The only spill that was observed by anyone at the relevant time was the one in which Souliere slipped. Both Bogale and Culliford testified that otherwise the rest of the floor in the Market Restaurant was clean, and free of any food spillage. Even Souliere, on her examination for discovery, testified that the floor appeared “pretty clean”.
[53] Based on this evidence, I find that the 13 employees on duty that night were all monitoring the Market Restaurant for food spillage, and cleaning any spills that occurred, in accordance with Casino Niagara’s policy. Thus, I conclude that Casino Niagara’s policy for inspecting and cleaning the floors of the restaurant was working reasonably well.
[54] For these reasons I find that Casino Niagara has met the standard of care set out in s.3(1) of the OLA. Casino Niagara is not liable for Souliere’s slip and fall.
CAUSATION
[55] Regarding causation, even if I am incorrect that Casino Niagara met the standard of care required by the OLA, I find that Souliere has not proven that her fall would have been prevented if Casino Niagara had a more vigilant policy for inspecting and cleaning the restaurant floors.
[56] The legal test for causation is the “but for” test, as set out in many cases, including the Dhaliwal decision at paras. 54 to 56. Thus, in order to succeed, Souliere must prove that her slip and fall would not have occurred but for Casino Niagara’s breach of the standard of care.
[57] In the present case, on Culliford’s evidence, a food substance fell from a customer’s plate to the floor approximately three seconds before Souliere slipped on it. Even if the standard of care was such that Casino Niagara was required to employ a person whose primary or sole job was to monitor for food spills, or if Casino Niagara was required to regularly sweep the floors during business hours, compliance with such a higher standard of care would not have prevented Souliere from slipping and falling in these circumstances.
[58] In my view, Souliere’s fall happened so quickly after the food substance was spilled, that it is doubtful that it could have been prevented by even the most vigilant inspection and cleaning policy. To hold Casino Niagara responsible for Souliere’s slip and fall in these circumstances would be tantamount to finding that Casino Niagara was an insurer against any slip and fall. That would not be correct.
[59] Therefore, I find that Souliere is unable to prove that her fall would not have occurred, even if Casino Niagara had complied with a higher standard of care.
CONCLUSION
[60] In summary, I find that Souliere has not proved that Casino Niagara breached the standard of care set out in s.3(1) of the OLA.
[61] In the alternative, I find that even if Casino Niagara did breach the standard of care, Souliere is unable to prove that Casino Niagara’s breach was the cause of Souliere’s slip and fall.
[62] The plaintiff’s claim is dismissed. If there are any matters that flow from this decision, including costs, the parties may make submissions in writing addressed to the trial coordinator with 30 days of this decision.
Henderson J.
Released: March 25, 2014
COURT FILE NO.: 11675/09
DATE: 2014/03/25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lori Souliere
Plaintiff
- and –
Casino Niagara, Ontario Lottery and Gaming Corporation and Niagara Falls Management Company
Defendants
REASONS FOR JUDGMENT
Henderson J.
Released: March 25, 2014