ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shaun Everett Brown and Sharie Lynn Brown
Plaintiffs
– and –
Atlific Inc. also known as Atlific Hotels and Resorts Ltd. and Market Square Inn Limited Partnership c.o.b. as Courtyard by Marriott Ottawa Downtown and Ocean Properties, Ltd.
Defendants (moving party)
David Hollingsworth, for the Plaintiffs
Michelle Doody and Jacquie Dagher, for the Defendants
HEARD: November 7, 2016
REASONS FOR Decision
R. Smith J.
1The defendants (hereinafter collectively referred to as “the Marriott”) have brought a motion for summary judgement dismissing the plaintiffs’ claim for damages as a result of a slip and fall accident at its Hotel in the market area of Ottawa.
2Both the Marriott and the plaintiffs (hereinafter referred to as “Mr. Brown”) agree that the liability issue may be decided on a summary motion as there is no genuine issue requiring a trial. The facts are not in dispute and there are no credibility issues to be decided. I am also satisfied that a fair and just determination on the merits may be made on a summary motion as required by Hryniak v. Mauldin, 2014 SCC 7.
3The parties also agree that I may decide the liability issue in either party’s favour even though the plaintiff has not brought a summary judgment motion.
4The Marriott submits that it took such care as in all of the circumstances was reasonable to assure that persons entering the premises were reasonably safe while on its premises as required by the Occupiers Liability Act, R.S.O 1990 c 0.2.
5The Browns submit the opposite, namely that the Marriott failed to take such care as was reasonable in the circumstances because an employee cleaned the tile floor immediately behind Mr. Brown, leaving a slippery wet floor without providing him with notice of the existence of an unsafe situation immediately to his rear. They submit that both the person cleaning the tile floor and the desk clerk were aware or ought to have been aware of the unsafe situation that was created in an area where Mr. Brown could not have noticed that the tile floor that he would have to cross was now wet and slippery.
6The issue to be decided is as follows:
(a) Did the Marriott take reasonable care in all of the circumstances to ensure that Mr. Brown was reasonably safe when on its premises?
Facts
Facts
7Mr. Brown injured himself on the morning of April 12, 2012 after he slipped while walking through the lobby at the Marriott Hotel, which is located at 350 Dalhousie Street. He was in the city of Ottawa for business purposes.
8Mr. Brown recalls that the weather was sunny and dry. He was wearing flat, rubber soled Rockport walking shoes, which were quite new.
9A video was played as evidence before me. The video captures a full unobstructed view of the entire sequence of events leading up to the plaintiff’s slip that morning. The video also shows the actions of the two hotel employees involved as well as the actions of Mr. Brown.
10Shortly after 9 a.m. Mr. Brown entered the lobby through the automatic sliding doors of the main entrance of the Marriott Hotel. The Guest services manager for the hotel stated that this was a very typical way for guests to enter the hotel lobby. He was carrying a small overnight bag and a backpack type laptop computer bag. He did not appear to be in a rush.
11Mr. Brown’s first business meeting was scheduled for 1 p.m. and he intended to leave his bags with the concierge and to walk around the Byward market.
12The entry way to the hotel consists of a tiled lobby area and there is a small area of dark brown flooring immediately in front of the reception desk. The dimension of the tile floor in the front lobby is 4.62 m x 4.4 m. When he entered the lobby of the hotel, the tile floor was dry and free from any hazards and was essentially empty.
13Mr. Brown noticed the Guest services associate Mr. McCann, who beckoned him over to the reception desk. Mr. Brown did not speak to or see anyone else when he entered the lobby. Mr. Brown stood continuously at the reception desk with his back to the lobby throughout the check-in process. Mr. Brown was standing off of the tiles on the dark brown flooring area while he was checking in.
14Mr. Brown was at all times a paying guest at the hotel.
15While Mr. Brown was standing talking to Mr. McCann at the reception desk, the hotel cleaner entered the lobby and began to mop the tiled lobby floor immediately behind him. The cleaner placed a bright yellow “wet Floor” warning sign in the middle of the tiled lobby. The hotel’s cleaning procedure requires that a warning sign be placed at every entry point when the floor is being cleaned.
16The hotel cleaner proceeded to clean half of the tiled area and then moved the warning sign to one side and cleaned the other half. She then left the lobby area leaving the wet floor sign in the centre of the tiled area. During all of this time Mr. Brown had his back to the tiled area and was speaking with Mr. McCann at the registration the desk.
17At no time did the hotel cleaner or the Guest services associate, verbally warn Mr. Brown that the tile floor behind him had just been cleaned and was slippery and wet.
18After checking in, Mr. McCann verbally and physically directed Mr. Brown towards the elevator and he immediately commenced walking in that direction. As he was walking across the tile floor his right foot skidded and then his left foot skidded. He was able to regain his balance without falling but he injured his back at that time.
19When he had turned to see the cause of his slip he saw two skid marks on the wet tile floor. He also observed the cleaner with a mop in her hand close to the wall to the right of where he was standing.
20Mr. Brown’s uncontradicted evidence is that at no time did he see, hear or observe the tile floor being mopped, nor did he see any sign or warning when he entered the white tile floor from the reception desk, nor anywhere along his path or his line of sight when walking towards the elevators.
21Mr. Brown also states that at no time did he see the cleaner as his attention was focused on checking in and providing the information required to Mr. McCann.
22Miss Habib was the hotel manager at the time of the incident. One of her responsibilities was to ensure that all hotel guest safety measures and health and safety standards were followed.
23Miss Habib conceded in discoveries that as part of the Marriott online training, Mr. McCann was required to advise Mr. Brown of the hazard created by the hotel cleaner mopping the tile floor immediately behind him. She stated that Mr. McCann’s training required him to inform the guest “that maybe the floor was wet behind him, to be careful”
24The Marriott’s guest safety standards include a cleaning procedure for mopping floors. The procedure requires the cleaner to have a number of items with them including of a “Wet Floor” sign and a dry mop. The cleaner is required to take the dry mop and mop the area over again to get rid of any excess water and to leave the wet floor signs in place until the floor is completely dry.
25The cleaner was not seen dry mopping the tiled area however she had just finished mopping the floor when Mr. Brown walked across part of the wet and slippery tiled floor and slipped.
Analysis
Analysis
26Section 3(1) of the Occupiers Liability Act (the “Act”) imposes a duty on an occupier of the premises to take such “care as in all circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by persons are reasonably safe while on the premises”
27In the decision of Waldick v. Malcolm, (1989), 1991 CanLII 8347 (ON CA), 70 O.R. (2d) 717 (Ont CA), the Court of Appeal stated that occupiers have an affirmative duty to make their premises “reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm.” In the same decision the court stated that although the statutory duty on occupiers does not change from case to case, “the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation”
28The defendants argue that the plaintiff’s claim should be dismissed because the floor was in a good state of repair, the hotel cleaner complied with the hotel cleaning procedures, the cleaner placed a wet floor sign on the tiled area of the front lobby prior to cleaning, and the slip could have been avoided if Mr. Brown had paid attention to his surroundings.
29In the decision of Van Staveren v. Coachlite Roller Gardens. Inc., 2012 ONSC 5941, the Court stated that where a sign (pylon) is moved to a location so as not to effectively demarcate the area of danger, it fails to meet the standard of care required. To be effective, a sign must be visible to the person it is intended to protect.
30I find that the Marriott failed to take care that was reasonable in the particular circumstances to ensure that Mr. Brown, who was a guest of the hotel, was reasonably safe on their premises for the following reasons:
(a) the hotel cleaner created a dangerous situation by mopping the tile floor, thereby leaving it wet and slippery, in an area immediately behind Mr. Brown as he registered with the hotel;
(b) while the hotel cleaner placed a warning sign in the middle of the small tiled area, the sign was located immediately behind Mr. Brown and as such he was not able to see it;
(c) The hotel cleaner also moved the warning sign to clean the other half of the tiled area, making it less likely that Mr. Brown would see the sign as he walked towards the elevators as the warning sign was not placed in his sight line or along his walking path towards the elevators;
(d) While the hotel cleaner was following the cleaning protocol, I agree with the manager’s admission that she should have verbally warned Mr. Brown that the floor had been mopped behind him and was slippery and wet and to be careful. Unfortunately neither the hotel cleaner nor the guest services associate who knew or ought to have known that the tile floor was being mopped immediately behind Mr. Brown, verbally warned him to be careful as the floor had recently been mopped and was slippery and wet;
(e) I find that mopping the floor created a wet and slippery surface behind a guest, who had his back turned to the hotel cleaner and was unaware that the floor was being cleaned, created a reasonably foreseeable risk in the circumstances that required the defendant employees to warn Mr. Brown of the danger behind him in the circumstances.
(f) At no time did Mr. Brown have any opportunity to consider and avoid the risk created by the mopping of the tile floor immediately behind him, in the absence of a verbal warning by either the hotel cleaner or by the reception clerk. Unfortunately the wet floor sign was an ineffective warning of the danger as Mr. Brown had his back to the warning sign which prevented him from seeing the warning sign.
(g) giving a verbal warning to Mr. Brown in the circumstances would have been simple, cost-effective and convenient for the hotel cleaner or the desk clerk to have given to Mr. Brown.
31The Marriott has not established on a balance of probabilities that Mr. Brown failed to exercise reasonable care for his own safety and as result I find that he is not contributorily negligent because the hazard was created after he had walked across the tiled lobby, the wet floor warning sign was placed behind his back and out of his sight line when he walked towards the elevators, he used the premises in a reasonable and usual way, and as a result there was no opportunity for him to have seen or been aware of the danger, and he was not given any verbal warning of the dangerous situation that had been created by either the hotel cleaner or by the desk clerk.
Disposition
Disposition
32For the above reasons I find the defendant, Marriott failed to meet its duty of care under s.3(1) of the Occupiers Liability Act and is liable for Mr. Brown’s injuries and losses that he suffered as a result of slipping on the wet tile floor at their hotel. This matter is remitted to a hearing for an assessment of his damages.
Costs
Costs
33The parties shall have the 15 days to make submissions on costs.
Justice Robert Smith
Released: December 6, 2016
CITATION: Brown v. Marriott, 2016 ONSC 7619
COURT FILE NO.: 14-60562
DATE: 2016/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shaun Everett Brown and Sharie Lynn Brown
Plaintiffs
– and –
Atlific Inc. also known as Atlific Hotels and Resorts Ltd. and Market Square Inn Limited Partnership c.o.b. as Courtyard by Marriott Ottawa Downtown and Ocean Properties, Ltd.
Defendants (moving party)
REASONS FOR JUDGMENT
R. Smith J.
Released: December 6, 2016