The ordinary concerns people encounter grocery shopping do not usually concern personal safety, but in this Thunder Bay Superior Court case, Justice Fitzpatrick had to consider the liability involved where an elderly shopping patron, Mr. Saisho, was struck by another patron, Mr. Beardy, who was pushing an overstuffed cart towards the exit of the store. Mr. Saisho was knocked to the floor, resulting in spastic quadriplegia. Sadly, Mr. Saisho would go on to stay in hospital permanently for over two years, until his death.
The liability dispute was whether the store breached it’s statutory duty of care under section 3 of the Occupier’s Liability Act. The central issues were:
- Did the store breach its duty of care either by the actions of its employees, or the lack of action by its employees?
- Did the Cashier in Lane 1 see that Mr. Beardy had overloaded his cart?
- Did the Cashier in Lane 1 have a duty to tell Mr. Beardy to take down his load or stop him from moving until he did take down his load?
- Was it reasonably foreseeable that a patron would overload a cart and then push it so as to collide with another patron such that the store had a duty to post notices referring to the dangers of overloaded carts or to have specific policies regarding measures to prevent patrons from moving around the store with overloaded carts?
- Did the store breach a duty of care to Mr. Saisho in the manner it carried out the investigation of the accident?
- Was the actual collision caused by Mr. Beardy’s inattention to where he was going or his inability to see where he was going and proceeding in any event?
Of the many witnesses called, none saw the actual incident. Ms. Tait, the cashier who checked out Mr. Saisho, indicated that he was a patron, he was checked out, and he proceeded to leave the store. The cashier who checked out Mr. Beardy did not testify, as she had since been fired.
Ms. Tait described Mr. Beardy’s cart as “way overloaded”. At a glance, she observed it move away from the lane and towards the exit. She saw the cashier handling Mr. Beardy’s purchase, and spoke with her, but could not recall any further details. She did not try to speak to Mr. Beardy. She indicated that twice per week, she saw customers moving around the store with overloaded carts. She knew, as common sense, she should stop the customer and ask them to reduce their load. If the customer did not comply with this warning, she would contact a supervisor to handle the situation. She testified that cashiers take no part in bagging and loading carts once a customer has paid. It was reasonable that a cashier would not have an opportunity to observe how a customer loaded the cart once the customer paid.
Mr. Beardy did not dispute Ms. Tait’s evidence, and indicated that he had filled his cart with his own as well as his friend’s purchases. He admitted that he could not see over the top of the load. He was rushing to leave, and could not speculate what the cashier could see with respect to his cart. She did not assist him with loading his cart. He testified that no one approached him about the height of his loaded cart. The collision took place shortly after he started moving the cart. Justice Fitzpatrick found that Mr. Beardy was negligent to move the cart forward when he couldn’t see where he was going.
The store called several witnesses, consisting of employees of various levels. One employee, responsible for the cashiers, indicated that there was a policy posted in the staff room:
Westfair Foods Ltd. offers a clean, safe and well groomed shopping environment for its customers. At the same time, Westfair Foods Ltd. and its employees have a legal obligation to be on guard for the safety of our patrons and employees…
I understand that as an employee of Westfair I have a responsibility to abide by the company policy with respect to Safety, Environment and Waste Management, therefore, I must comply with the following guidelines:
1. Report any unsafe acts or conditions and correct unsafe conditions when working while encouraging co-workers to do the same.
…
3. If I see or hear anything that may cause a potential hazard for our patrons, I will immediately try to alleviate the problem by:
- Advising my supervisor or manager of the problem as soon as it is reasonably possible.
- Warning Patrons of the hazard by immediately securing the area to indicate a hazard.
- Removing or cleaning up the hazard.
The assistant manager was also aware of the policy, and indicated that the issue of an overloaded cart was a “common sense” matter. The store “host” that was working at the time near the incident location was responsible for checking receipts against purchases at the exit. She testified that she saw, after the incident, that the cart was overloaded. She advised that she saw overloaded carts 10 times per year, and advised customers to reduce their loads. All employees noted that there was no express policy directing cashiers to ensure that carts were loaded safely once customers had paid for their purchases. Also, there was no signage in the store directing customers not to overload their carts.
Justice Fitzpatrick considered section 3 of the Occupier’s Liability Act, which imposes a duty on the occupier of a premises to take such care as that is reasonable in all the circumstances to see that persons entering on the premises are reasonably safe while present. He was also referred by both counsel to Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456. In that case, the Supreme Court of Canada held that when applying the statutory duty, occupiers are to take such reasonable care in the circumstances so as to make the premises safe (at para. 33):
After all, the statutory duty on occupiers is framed quite generally, as indeed it must be. That duty is to take reasonable care in the circumstances to make the premises safe. That duty does not change but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation – thus the proviso “such care as in all circumstances of the case is reasonable”.
Justice Fitzpatrick also agreed with the decision of Kozak J. in another Thunder Bay case, Garafolo v. Canada Safeway Ltd., 66 O.T.C. 241 (Gen. Div.) (QL), where at para. 31, he stated:
The positive or affirmative duty that is imposed upon the defendant does not extend to the removal of every possible danger. It does not require the defendant to maintain a constant surveillance or lookout for potential danger. The defendant meets its duty to take reasonable care if it takes measures that are reasonable in the circumstances.
In his analysis, Justice Fitzpatrick indicated that it was reasonably foreseeable that a customer could potentially overload their cart while on the premises. He found that employees were clearly aware of the danger through directions given to them, and through the general health and safety policies of the store, which reinforced for employees the necessity to “do something if they saw something”. Justice Fitzpatrick stated that the issue was whether or not any of the employees actually “saw something” when Mr. Beardy started moving his overloaded cart.
The cashier who checked out Mr. Beardy was no longer employed by the store, and Justice Fitzpatrick was not prepared to make an adverse finding against the defendant for not calling her as a witness. Based on the evidence provided by Mr. Beardy and his friend, Justice Fitzpatrick found that the cashier could not have seen the overloaded cart as she moved onto a new customer after it was already overloaded. It was not reasonable for that cashier to expect that the cart would be overloaded after she had moved onto the new customer behind them. Justice Fitzpatrick indicated that it would not be reasonable to make the store liable for the decision of Mr. Beardy to rush out of the store.
Ms. Tait was not found responsible to tend to Mr. Beardy’s overloaded cart as she was dealing with customers in her own lane. Further, the store’s policies and procedures were found to be reasonable in the circumstances. The policies did not have to take into account all possible situations of danger that could occur on the premises. The judge disagreed with the Plaintiff that it was necessary to address overloaded carts specifically in written store policies.
Justice Fitzpatrick found that on a balance of probabilities, the actions of the store defendant and its employees were not in breach of the duty of care owed to Mr. Saisho. None of the store employees was in a position to prevent the collision from happening. He therefore found Mr. Beardy 100% fault for the damages caused to Mr. Saisho.
What is interesting is that there were no efforts to find the cashier that checked out Mr. Beardy, nor was a written statement obtained from her, even though the evidence of this cashier could have significantly changed Justice Fitzpatrick’s findings of fact. Further, there was little burden placed on the store “host” that was at closest proximity to the collision, where her role was specifically to examine shopping carts and receipts. Moral of the story? Pay attention to your overloaded cart, as the result could be tragic!
