Canada: Dhaliwal v. Premier Fitness Clubs Inc.

Last Updated: February 4 2013

Article by Robin Squires and Kathryn Shani, Student at Law

OCCUPIERS' LIABILITY IN THE FACE OF REASONABLE DILIGENCE

In a recent judgment of the Ontario Superior Court of Justice, Justice K.L. Campbell held Premier Fitness Clubs Inc. ("Premier Fitness") liable under the Occupier's Liability Act for the Plaintiff's finger amputation after he slipped while using a weight machine at a fitness club. Premier Fitness was liable even though they had a reasonable maintenance system (the "Maintenance System") in place. The court found in favour of the plaintiff despite the fact that Premier Fitness appears to have had a maintenance system in place that met the standard of care.

THE FACTS

The Plaintiff was the only witness to the events that took place on January 24, 2005. On that day, the Plaintiff was at one of the defendant's fitness clubs. As part of his usual workout routine, he normally completed four sets of repetitions on a vertical leg press weight machine. After the third set, he went to the club's water fountain, and noticed that the ground surrounding the water fountain was wet with water. He then realized his shoe was wet as a result of stepping in the water. As he walked back to the leg press, he "stomped" his feet to get the water off of his shoes. When he got to the leg press, he looked at the bottom of his shoes, and was satisfied there was no water on them. He did not remove his shoes or dry them off at any point.

The Plaintiff began his fourth set on the leg press. He unlocked the safety mechanism, and tried to push the weight sled upward with his legs. His right foot slipped off of the platform. He lost his balance, and quickly tried to move the safety mechanism back into place with his right hand. Instead, his right pinky finger got caught underneath the weights and was crushed. The end of his pinky finger was eventually amputated.

Premier Fitness led evidence about their Maintenance System through their CFO and a customer service representative. According to the CFO, Premier Fitness had a full time cleaning staff whose duties were to patrol and clean the club each day. The customer service representative testified that the cleaning staff regularly mopped up the water around the fountain. She also stated that when there was water on the floor there was usually a "wet floor" warning sign put up, and that there was always a perforated mat underneath the water fountain to assist in preventing water from getting on users' shoes.

The Court accepted that the Maintenance System described by Premier Fitness was in fact in place at the fitness club.

THE LEGAL ANALYSIS

The Court apportioned damages equally between the Plaintiff and Premier Fitness for the Plaintiff's injury. Premier Fitness was found liable for breaching the standard of care. The Plaintiff was contributorily negligent by failing to ensure his shoes were dry before using the leg press.

According to the court, the "plaintiff has established that, in all of the circumstances of this case, the defendants failed in their affirmative duty to make their fitness club premises reasonably safe for their members by taking reasonable care to protect them from foreseeable harm." Unfortunately, the decision is silent as to exactly how this was proved. Presumably, the uncontroverted evidence that the Plaintiff's shoe got wet at the water fountain was enough to satisfy the plaintiff's onus.

Addressing Premier Fitness's defence, the Court examined "supermarket slip and fall" cases for the general legal principles. In order for Premier Fitness to successfully defend the claim, it would have to prove that: (1) they instituted reasonable policies and procedures on their premises, and (2) that these policies and procedures were followed on the day of the incident. If Premier Fitness could show that it was routine for these policies and procedures to be complied with, then the Court could also infer that they were observed on the day of the incident.

The Court agreed that Premier Fitness had a reasonable Maintenance System on their premises. However, Premier Fitness had not led any evidence that their Maintenance System was observed on the day of the incident, or that the Maintenance System was routinely followed. It was therefore not enough for the CFO or customer service representative simply to state that the Maintenance System was in place or that it was regularly followed.

Specifically, the Court was looking for evidence that the cleaners followed a reasonably strict schedule, like a cleaning log record. No cleaners were called to give evidence that they were working on the day of the incident, and no business records were shown. There was also no evidence as to whether any cleaners were monitoring the water fountain that day, or that there actually was a "wet floor" warning sign placed near the water fountain. The Court drew an adverse inference against Premier Fitness for failing to provide this type of evidence.

CONCLUSIONS AND FUTURE IMPLICATIONS

The evidence about the Maintenance System that was in place at the fitness club was not enough to meet the standard of care in this case. However, this decision emphasizes how important it is for occupiers to keep records showing that their policies and procedures that ensure reasonable safety are being followed.

Based on this decision, it is clear that occupiers cannot rely on the mere existence of these policies and procedures, but must keep records and lead evidence that the policies and procedures are routinely implemented in order to avoid liability. Otherwise, there is a risk that a judge may find the occupier liable despite the presence of a maintenance system that otherwise meets the standard of care.

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