Lingley v. Dominion Stores Ltd., (1978) 23 N.B.R.(2d) 546 (QB)

• Judge: Stratton, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 23, 1978
• Jurisdiction: New Brunswick
• Citations: (1978), 23 N.B.R.(2d) 546 (QB)

Lingley v. Dominion Stores Ltd. (1978), 23 N.B.R.(2d) 546 (QB);

    23 R.N.-B.(2e) 546; 44 A.P.R. 546

MLB headnote and full text

Sommaire et texte intégral

Lingley v. Dominion Stores Limited

Indexed As: Lingley v. Dominion Stores Ltd.

Répertorié: Lingley v. Dominion Stores Ltd.

New Brunswick Court of Queen's Bench

Stratton, J.

October 23, 1978.

Summary:

Résumé:

This case arose out of an action by the customer of a grocery store for damages for personal injuries after a fall suffered on the store's premises. The customer, who often shopped at the store, on attempting to open the exit door at first met great resistance from the automatic door closer. She pushed harder; the automatic door closer suddenly released and the customer fell out through the door and fractured her hip. The store knew that the door closer had malfunctioned in the past and a similar incident had occurred to another customer. The customer brought an action against the store for damages.

The New Brunswick Court of Queen's Bench, allowed the action and held the store liable. The New Brunswick Court of Queen's Bench held that the malfunctioning automatic door closer constituted an unusual danger of which the store knew. The New Brunswick Court of Queen's Bench held that the store breached its duty to the customer of protecting her from the dangerous door closer.

Damage Awards - Topic 127

Personal injuries and death - Leg injuries - Femur - Displaced fracture of neck of femur requiring substitution of metal prosthesis - Resulting limp and continuing pain - Use of cane required - Reduction in level of physical activities - Possibility of future surgery to replace prosthesis - 61 year old widow - The New Brunswick Court of Queen's Bench, awarded $7,500 general damages for pain, suffering and loss of amenities of life - See paragraphs 14 to 17.

Evidence - Topic 2401

Presumptions - Unfavourable inference from failure of party to call available evidence - The defendant failed to call evidence of repairs made to an automatic door closer, which was alleged to have caused injury - The New Brunswick Court of Queen's Bench, inferred from the defendant's failure to call the evidence that the evidence would have been unfavourable to the defendant - See paragraph 8.

Torts - Topic 3701

Occupier's liability for dangerous premises - Invitees - What constitutes an invitee - The New Brunswick Court of Queen's Bench, held that the customer of a grocery store was an invitee of the store - See paragraph 9.

Torts - Topic 3705

Occupier's liability for dangerous premises - Invitees - Liability of retail business - Standard of care - The New Brunswick Court of Queen's Bench, held that a grocery store has a duty to use reasonable care to prevent damage to customers from unusual danger of which it knows or ought to know - The Court of Queen's Bench held the grocery store liable for injury to a customer, who was injured in a fall caused by a malfunctioning automatic door closer - See paragraphs 9 to 13.

Torts - Topic 3714

Occupier's liability for dangerous premises - Invitees - Unusual danger - What constitutes - A customer of a grocery store fell on leaving the store, when the automatic door closer at first resisted the customers push, then suddenly released - The New Brunswick Court of Queen's Bench, held that the malfunctioning of the automatic door closer constituted an unusual danger - See paragraphs 10 to 12.

Cases Noticed:

Levesque v. Comeau, [1970] S.C.R. 1010, appld. [para. 8].

Bosse v. Roy (1972), 4 N.B.R.(2d) 801, appld. [para. 8].

Belanger v. Reid (1975), 11 N.B.R.(2d) 94; 7 A.P.R. 94, appld. [para. 8].

Glencross & Hachey v. Brimsacle (1977), 19 N.B.R.(2d) 129; 30 A.P.R. 129, appld. [para. 8].

Indermaur v. Dames (1866), L.R. 1 C.P. 274, appld. [para. 9].

Smith v. Provincial Motors (1962), 32 D.L.R.(2d) 405, appld. [para. 10].

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

Rafuse v. T. Eaton Co. (1958), 11 D.L.R.(2d) 773, appld. [para. 11].

Fiddes v. Rayner Construction (1964), 45 D.L.R.(2d) 367, appld. [para. 11].

Campbell v. Royal Bank of Canada, [1964] S.C.R. 85, appld. [paras. 11, 13].

MacNeil v. Sobeys Stores Ltd. (1961), 29 D.L.R.(2d) 761, appld. [para. 11].

Hillman v. MacIntosh, [1959] S.C.R. 384, consd. [para. 13].

Green v. Metropolitan Stores (1970), 3 N.B.R.(2d) 266, consd. [para. 13].

Young v. Dari Shoppers Ltd. (1971), 4 N.B.R.(2d) 145, consd. [para. 13].

Cyr v. Bon Accord Enterprises Ltd. (1974), 10 N.B.R.(2d) 130; 4 A.P.R. 130, consd. [para. 13].

Arsenault v. Les Magasins Continentals Ltee. (1975), 12 N.B.R.(2d) 639; 10 A.P.R. 639, consd. [para. 13].

Bate v. Kileen Enterprises Ltd. (1976), 14 N.B.R.(2d) 204; 15 A.P.R. 204, consd. [para. 13].

Biswanger v. Dominion Stores Limited (1976), 18 N.S.R.(2d) 107; 20 A.P.R. 107, consd. [para. 13].

Desjardins v. Kent's Supermarket Ltd. (1977), 17 N.B.R.(2d) 219; 23 A.P.R. 219, consd. [para. 13].

Somers v. Simpson-Sears Limited (1978), 21 N.B.R.(2d) 243; 37 A.P.R. 243, consd. [para. 13].

Bishop v. Arts & Letters Club of Toronto (1978), 83 D.L.R.(3d) 107, consd. [para. 13].

Authors and Works Noticed:

Harris, Some Trends in the Law of Occupier's Liability (1963), 41 C.B.R. 401 [para. 11].

Linden, A Century of Tort Law in Canada - Unusual Dangers (1967), 45 C.B.R. 831, at 836 et seq. [para. 11].

Counsel:

Leonard C. Jones and Randy A. Roth, for the plaintiff;

Peter F. Blair, for the defendant.

This case was heard on September 27, 1978, at Moncton, N.B., before STRATTON, J., of the New Brunswick Supreme Court, Queens' Bench Division.

On October 23, 1978, STRATTON, J., delivered the following judgment: