Shwemer v. Odeon Morton Theatres Ltd., (1985) 33 Man.R.(2d) 109 (QB)

• Judge: Jewers, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 16, 1985
• Jurisdiction: Manitoba
• Citations: (1985), 33 Man.R.(2d) 109 (QB)

Shwemer v. Odeon Theatres Ltd. (1985), 33 Man.R.(2d) 109 (QB)

MLB headnote and full text

Shwemer v. Odeon Morton Theatres Ltd.

(Suit No. 3163/80)

Indexed As: Shwemer v. Odeon Morton Theatres Ltd.

Manitoba Court of Queen's Bench

Jewers, J.

January 16, 1985.

Summary:

The plaintiff fell on some ice and injured herself while waiting in a lineup to enter the defendant's cinema. The plaintiff brought an action in negligence for damages for personal injuries against the defendant.

The Manitoba Court of Queen's Bench dismissed the plaintiff's claim and provisionally assessed damages.

Damage Awards - Topic 130

Leg injuries - Knee - A 61 year old female sustained a torn medial meniscus or cartilage in her right knee as a result of a fall on ice outside a cinema - She underwent surgery to remove cartilage - After six months she could walk without assistance - Degenerative changes - Continuing pain - Activities limited - Scar on knee - The Manitoba Court of Queen's Bench provisionally assessed $15,000.00 for nonpecuniary general damages - See paragraphs 31 to 37.

Municipal Law - Topic 1724

Municipalities - Liability of - Highways and streets - Maintenance of - General - The Manitoba Court of Queen's Bench referred to the duty imposed on the City of Winnipeg by the City of Winnipeg Act to keep streets in repair and the city's potential civil liability for failure to fulfil this duty - See paragraphs 24 to 28.

Torts - Topic 81

Negligence - Duty of care - Duty of cinema operator to keep sidewalks safe - A patron fell on some ice on a sidewalk and injured herself while waiting in a line-up to enter a cinema - The Manitoba Court of Queen's Bench dismissed the patron's damages claim because the cinema owed no duty of care to the patron in the circumstances - The court noted that the cinema voluntarily undertook to clear the sidewalk and therefore owed no duty to take care in doing so provided the cinema did not add to the damage that would have been caused to the patron had it done nothing - See paragraphs 1 to 30.

Torts - Topic 3554

Occupier's liability for dangerous premises - Occupier and premises defined - Respecting sidewalks - A plaintiff fell on some ice on a sidewalk and injured herself while waiting in a line-up to enter the defendant's cinema - The plaintiff sued the cinema arguing that it was responsible for the plaintiff's injuries on the basis of the law relating to occupier's liability - The Manitoba Court of Queen's Bench held that the special rules relating to occupier's liability did not apply where the cinema was not an occupier of nor did it have control of the sidewalk adjacent to its building - Therefore the court held that the case would be decided on the basis of the general law of negligence - See paragraphs 18 to 20.

Cases Noticed:

Albion v. Cochrane (1969), 4 D.L.R. (3d) 667, dist. [para. 21].

Zoernsch v. Waldock, [1964] 1 W.L.R. 675, refd to. [para. 21].

Dorschell v. Corporation of the City of Cambridge (1981), 12 M.P.L.R. 229, refd to. [para. 27].

Edgar v. Canadian Imperial Bank of Commerce (1977), 6 A.R. 104, refd to. [paras. 23, 28].

Statutes Noticed:

City of Winnipeg Act, S.M. 1971, c. 105, sect. 519 [para. 24].

Authors and Works Noticed:

Charlesworth and Percy on Negligence (7th Ed.), pp. 35 [para. 21]; 36 [paras. 22, 29].

Di Castri, Occupiers' Liability, p. 6 [para. 19].

Counsel:

Otto G. Ament, for the plaintiff;

Charles A. Sherbo, for the defendant.

This case was heard before Jewers, J., of the Manitoba Court of Queen's Bench, who delivered the following decision on January 16, 1985: