Cook v. Day, (1979) 26 N.B.R.(2d) 128 (QB)

• Judge: Stratton, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 14, 1979
• Jurisdiction: New Brunswick
• Citations: (1979), 26 N.B.R.(2d) 128 (QB)

Cook v. Day (1979), 26 N.B.R.(2d) 128 (QB);

    26 R.N.-B.(2e) 128; 55 A.P.R. 128

MLB headnote and full text

Sommaire et texte intégral

Cook v. Day

Indexed As: Cook v. Day

Répertorié: Cook v. Day

New Brunswick Court of Queen's Bench

Stratton, J.

June 14, 1979.

Summary:

Résumé:

This case arose out of the plaintiff's claim in negligence against the defendant for damages for personal injuries resulting from a fall in the defendant's parking lot. The plaintiff customer of the parking lot left her car at the parking lot to be parked. The attendant parked the car with the driver's side next to a very low retaining wall above a recessed driveway several feet below. There was not room to enter the car from the driver's side. The plaintiff, who was not familiar with the parking lot, returned to her car at night and fell over the retaining wall to the driveway below. The plaintiff brought an action against the owner in negligence.

The New Brunswick Court of Queen's Bench allowed the plaintiff's action and held that the defendant was liable in negligence for the injuries caused by an unusual danger.

Damage Awards - Topic 133

Personal injuries and death - Leg injuries - Multiple leg fractures - Comminuted fracture of patella and basal neck fracture of femur - Forehead laceration - Resulting severe restriction of former active life - 66 year old married woman - The New Brunswick Court of Queen's Bench awarded $15,000.00 general damages for pain, suffering and permanent partial disability - See paragraphs 11 to 14.

Torts - Topic 3650

Occupier's liability for dangerous premises - Use pursuant to contract - General - The plaintiff customer of a parking lot was injured in the parking lot - The New Brunswick Court of Queen's Bench stated that the duty on the parking lot owner toward contractual visitors of the parking lot was approaching that of the duty owed invitees - See paragraph 7.

Torts - Topic 3701

Occupier's liability for dangerous premises - Invitees - Defined - The New Brunswick Court of Queen's Bench held that a paying customer of a parking lot was an invitee of the parking lot - See paragraph 7.

Torts - Topic 3708

Occupier's liability for dangerous premises - Invitees - Parking lot - The plaintiff customer of a parking lot was injured when she fell in the dark over a very low retaining wall into a recessed driveway or ramp, which her car was parked beside - The New Brunswick Court of Queen's Bench held that the parking lot owner was liable in negligence and set out the duty owed by the owner to the plaintiff - See paragraphs 7 to 10.

Torts - Topic 3714

Occupier's liability for dangerous premises - Invitees - Unusual danger - What constitutes - The plaintiff customer of a parking lot left her car at the parking lot to be parked - The attendant parked the car with the driver's side next to a very low retaining wall above a recessed driveway several feet below - There was not room to enter the car from the driver's side - The plaintiff, who was not familiar with the parking lot, returned to her car at night and fell over the retaining wall to the driveway below - The New Brunswick Court of Queen's Bench held that the circumstances constituted an unusual danger - See paragraphs 1 to 10.

Cases Noticed:

Butler v. Scott (1975), 12 N.B.R.(2d) 317; 10 A.P.R. 317, appld. [para. 7].

Indermaur v. Dames (1866), L.R. 1 C.P. 274, appld. [para. 7].

St. Pierre v. Harrison (1975), 13 N.B.R.(2d) 527; 13 A.P.R. 527, consd. [para. 10].

Lingley v. Dominion Stores Limited (1978), 23 N.B.R.(2d) 546; 44 A.P.R. 546, consd. [para. 10].

Authors and Works Noticed:

Fleming, The Law of Torts (5th Ed.), pp. 437-440 [para. 7].

Counsel:

William A. Anderson, for the plaintiff;

W.S. Reid Chedore, for the defendant.

This case was heard on June 6, 1979, at Saint John, N.B., before STRATTON, J., of the New Brunswick Supreme Court, Queen's Bench Division.

On June 14, 1979, STRATTON, J., delivered the following judgment: