Trial Victory for Vogel LLP
Doug Perras and Mike Vogel of Vogel LLP recently represented our client in his personal injury claim that went to trial against Superstore. On July 3, 2008, our client entered a local Calgary Superstore to purchase groceries. Unfortunately, while in the store, he slipped on a broken egg. Due to the nature of the fall, this resulted in our client sustaining a tear in his rotator cuff requiring surgical intervention to repair. Superstore was ultimately found fully liable for our client’s injuries.
The evidence of our client was that the fall occurred in the produce department. He did not see anything unusual while walking through the store but noticed after falling that there were egg remnants on the ground but absolutely no eggshell. In observing the area, our client testified that a carton of eggs was found in a nearby garbage can and that an employee of the store was nearby the accident scene with a mop in hand. He further indicated that the employee was reluctant to get a manager to attend the accident scene.
Superstore relied on the evidence of their corporate officer and store records in their defence. They did not call the manager or any employees who had direct knowledge in relation to the incident. It was acknowledged that Superstore had video footage throughout their store but did not preserve anything in relation to this incident. It was also acknowledged that the Superstore employees breached their own policy in improperly completing the Superstore Sweep Log on the day of the accident. Superstore also admittedly breached portions of their own incident reporting policies.
The Trial Judge outlined that to properly defend this type of case, Superstore must first show that they had a reasonable system to keep the premises reasonably safe from foreseeable harm. They then need to show that they actually adhered to and followed that system.
In applying the law to the facts of our client’s case, the Trial Judge, found that Superstore did in fact have practical policies in place to ensure that patrons would be reasonably safe when attending the store.
However, it was found by the Judge that Superstore did not follow their own policies in respect of the handling of this incident. Superstore failed to call any witnesses who had an actual involvement in the matter. Their Sweep Log was inadequately completed, which brought into question its reliability. Contrary to their own policy, the video footage was not maintained. Photographs of the accident scene were not taken until the following day as opposed to Superstores stated policy being to take them as soon after the accident as possible.
It was ultimately found that Superstore failed to discharge their onus to prove that there was compliance with their own policies on the day the Accident occurred. Consequently, it was determined that Superstore breached their duty of care to our client as a visitor to the store and they ultimately failed to take reasonable steps to maintain their floors in a safe condition for their customers. As such, Superstore was found fully liable for our client’s injuries.