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Insufficient Moisture in a Slip and Fall Claim

If I slip and fall in a store, will the store be liable? What if I conclude that the floor was wet and caused my fall, but there are other explanations for why I fell?

On January 23, 2017, the BC Supreme Court, Kelowna Registry released a judgment on a case (Hanes v. Loblaws Inc., 2017 BCSC 102) regarding a 2010 slip and fall. Ms. Darlene Hanes claimed that she injured her knee and lower back at the Kelowna Superstore on December 19, 2010, when she slipped and fell due to the slippery floor, and she sued for damages resulting from that fall. Before getting driven to Superstore, she had just walked across her church parking lot in her leather-soled, 2 inch heels. As she walked into the store (after being dropped off near the door), an employee (mopping the area) told her to be careful. She then proceeded to the checkout to return oranges. On her way to pick out a replacement box of oranges, she slipped and fell. The fall was captured on video.

Ms. Hanes sued the store in negligence and under the principles of the Occupiers Liability Act,  which, in short, make the store liable for injuries that result from a failure to maintain the reasonable safety of the premises. Superstore admitted that as an occupier, they owed a duty of care to Ms. Hanes to ensure that she would be reasonably safe when using the premises. Superstore argued that Ms. Hanes failed to prove that the floor was slippery, and failed to prove the damages that she alleged resulted from the fall.

Madam Justice Russell first summarized the law governing the claim, concluding that Ms. Hanes bore the burden of proving that Superstore’s negligence caused her to fall. She pointed out that merely showing that an injury occurred on an occupier’s property does not establish liability (para 126). She then weighed the evidence of what caused Ms. Hanes’ fall – rejecting Ms. Hanes’ argument that “the moisture on the floor must have caused it – because there was nothing else that could have caused the fall”. Justice Russell rejected this inference, finding that Ms. Hanes’ failed to prove her case because she failed to prove the existence of a condition or hazard that caused her to slip and fall, or that such condition resulted from a breach of the duty of the defendant:

[139]     There is simply no evidence that Ms. Hanes’ fall was caused by moisture on the floor, whether that was a pool of water, or just general moisture causing the surface to become unreasonably slippery.

[140]     The only indication of the presence of moisture at all comes from an assumption on Ms. Hanes’ part that the moisture she says she felt on the back of her jacket, a jacket that did not cover her buttocks, following her fall was caused by water on the floor.

[141]     This evidence is completely uncorroborated. The video disk shows many customers, employees, and managers walking back and forth across the area where she fell before and after the incident. None of them seems to have noticed anything wrong with the surface, and none appears to have lost traction as they traversed the area around the customer service desk.

[142]     Numerous employees inspected the floor and found neither pools of water nor a moist surface.

[143]     It is my view that Ms. Hanes’ shoes were already wet when she entered the store due both to her crossing the snowy church parking lot, and residual moisture on the concrete outside the store.

[144]     With the wet leather soles and high heels she was wearing, it would have been very easy for her to skid a little on her right high heel and to turn her ankle, causing her to fall. However, assigning any cause to her fall is itself speculative.

[145]     In my view, her fall was truly an accident and liability cannot be found against Superstore.

[146]     I also cannot find fault with the quality of the surface of the floor in the Superstore, and I find that the program in place to keep the floor as clean and dry as possible in the circumstances met a reasonable standard of safety.

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