Garofalo v. Canada Safeway Ltd.,

• Jurisdiction: Ontario
• Judge: Kozak, J.
• Citation: (1998), 66 O.T.C. 241 (GD)
• Court: Ontario Court of Justice General Division (Canada)
• Date: 22 January 1998

Garofalo v. Can. Safeway Ltd. (1998), 66 O.T.C. 241 (GD)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. FE.048

Nicolina Garofalo and Mike Garofalo (plaintiffs) v. Canada Safeway Limited (defendant)

(No. 6163-94)

Indexed As: Garofalo v. Canada Safeway Ltd.

Ontario Court of Justice

General Division

Kozak, J.

January 22 and February 24, 1998.

Summary:

The 53 year old female plaintiff slipped and fell while in the produce department of the defendant's store. The plaintiff injured her right ankle, lower back and right shoulder. A rotator cuff tear required surgery. The plaintiff brought a claim for damages under the Occupiers' Liability Act. The plaintiff's husband claimed damages under the Family Law Act. The evidence showed that the floor was clean except for a small piece of a plum.

The Ontario Court (General Division) dismissed the action. The court held that the defendant was not an insurer. The defendant had in place a maintenance plan which called for cleaning and sweeping as needed, with a supervised system requiring, at a minimum, sweeping at least every 1.5 hours. Except for the discarded piece of plum on the floor, the area was immaculate. The defendant's plan was reasonable. Constant surveillance and instant response was not required by the law. The court provisionally assessed $35,000 general damages for nonpecuniary loss, $6,500 special damages and $3,000 for the husband's Family Law Act claim. The successful defendant also sought party and party costs up to the date of an unaccepted $5,000 offer to settle and solicitor-client costs thereafter. Given that the unaccepted settlement offer was nominal or token only, the court awarded the defendant only party and party costs.

Damage Awards - Topic 57

Injury and death - Body injuries - Shoulder (incl. rotator cuff) - See paragraph 35.

Damages - Topic 1273

Losses by third parties - Persons entitled to claim - Husband and wife for each other - See paragraph 35.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - See paragraphs 37 to 44.

Torts - Topic 3503

Occupiers' liability or negligence for dangerous premises - General principles - Duty of occupier - General - See paragraphs 1 to 34.

Torts - Topic 3577

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Floors - See paragraphs 1 to 34.

Torts - Topic 3616

Occupiers' liability or negligence for dangerous premises - Negligence of particular occupiers - Retail stores - See paragraphs 1 to 34.

Cases Noticed:

Waldick et al. v. Malcolm et al. (1989), 35 O.A.C. 389; 70 O.R.(2d) 717 (C.A.), dist. [para. 18].

Waldick et al. v. Malcolm et al. (1991), 125 N.R. 372; 47 O.A.C. 241; 83 D.L.R.(4th) 18 (S.C.C.), refd to. [para. 19].

Bustin v. Saatchi, [1996] B.C.J. No. 1480 (S.C.), refd to. [para. 22].

Rees v. B.C. Place, [1987] B.C.W.L.D. 756 (S.C.), refd to. [para. 23].

Coulson v. Canada Safeway Ltd. (1989), 32 B.C.L.R.(2d) 212 (C.A.), refd to. [para. 23].

Carlson v. Canada Safeway Ltd. (1982), 47 B.C.L.R. 252 (C.A.), refd to. [para. 27].

Gerak v. British Columbia (1984), 59 B.C.L.R. 273 (C.A.), refd to. [para. 27].

S & A Strasser Ltd. v. Richmond Hill (Town) et al. (1990), 45 O.A.C. 394; 1 O.R.(3d) 243; 49 C.P.C.(2d) 234 (C.A.), dist. [para. 42].

Statutes Noticed:

Occupiers' Liability Act, R.S.O. 1990, c. O-2, sect. 3(1) [para. 17].

Rules of Civil Procedure (Ont.), rule 49.10(2) [para. 42].

Authors and Works Noticed:

Watson and McGowan, Ontario Civil Practice (1998), p. 771 [para. 41].

Counsel:

John H. Hornak and James P. Garofalo, for the plaintiffs;

Gregory R. Birston, for the defendant.

This action was heard before Kozak, J., of the Ontario Court (General Division), whose following judgment on liability and damages was released on January 22, 1998, with judgment on costs released on February 24, 1998.