Accidents at stores—do I have a claim?

A store operator can be held liable for injuries suffered when an accident, such as a slip and fall, occurs on their premises. The store operator, sometimes called the “occupier,” has a duty of care to everyone who visits the store. Under occupiers’ liability, there is an expectation that reasonable care must be taken to provide a safe environment for patrons.

Nova Scotia and Prince Edward Island each have Occupiers’ Liability Acts. New Brunswick follows general negligence law, while Newfoundland and Labrador follow common law, not a statute.

What kind of compensation can I receive?

A settlement is a voluntary agreement reached out of court between parties, while a judgment is the court’s decision that is imposed on the parties following a trial. Compensation determined by the court includes general damages, loss of past income, loss of future earnings, medical costs, and future care, among other factors.

The following are examples of case law demonstrating court-awarded compensation for accident injuries occurring at stores. Cases like these can help personal injury lawyers evaluate a claim’s value and help in the negotiation process with insurance companies.

Harrison v Loblaws, Inc. (Real Canadian Superstore), 2018 BCSC 575 (CanLII)

• The plaintiff, a 48-year-old woman, slipped in a pool of liquid laundry detergent and fell, striking her head on a shelf and then falling backward, striking her head on the floor. She received a total of $755,549.25 for damages, past loss of income, loss of future capacity, and the cost of future care.

Goody v. Costco Wholesale Corporation Limited, 2009 CanLII 37926 (ON SC)

• The plaintiff tripped over an entryway grate and fell, injuring her knees. She received a settlement of $50,000 for general damages, $50,736 for loss of past income, and $67,500 for future loss of income for a total of $168,236. Her husband also received a settlement of $7,500 under the Family Law Act.

When is a store at fault for an accident?

A store will be at fault for someone’s injury if they failed to ensure the premises are reasonably safe. Some common causes of injury for which a store might be liable include:

1. The store will be liable if they failed to have a reasonably adequate system in place for detecting and removing errant objects or product on the floor, or spills. A reasonable system typically includes regular patrols by staff that are logged.
2. The store would be liable if there were display pallets where the edge of the product does not line up with the edge of the pallet, causing a tripping hazard. When people walk about, they see the edge of the boxes on the pallet display and assume the pallets line up with that.
3. Building code violations in the construction of stairs. Building a set of stairs is a complex and nuanced task. Defects in stair design and railing systems may cause hazards. The building code is a minimum standard. A set of stairs can comply with the building code but still be unsafe.
4. Thresholds and changes in elevation between sections of floor that create a difference in elevation that is hard to see. A change in elevation creates a trip and fall hazard.

Other causes of injuries in stores include unsteady displays and shelves that could topple onto customers, spills that were improperly cleaned, or unmarked, that leave slippery grease slicks, or ill-placed floormats that a person could stumble on.

What will a store do after someone has an accident?

The store will fill out an incident report noting the date and time of the accident and details of how the accident occurred. The accident report may also list witness contact information and observations of store staff. Observations may include noting debris on the floor and what the customer was wearing in terms of footwear. For example, if the injured person was wearing cowboy boots, that may be noted. Cowboy boots generally have smooth leather soles that don’t provide traction. Footwear may be leveraged as a defence by the store later in litigation.

Floor logs are required to be filled out by store employees frequently to demonstrate that floors have been kept to a standard of reasonableness. For example, it would be expected that the produce department be ‘checked’ more frequently than other areas of the store, as produce has a high propensity to end up on the floor. This would create a hazard for shoppers, possibly causing a slip and fall accident.

CCTV footage should be gathered by the store to show the accident; footage should be preserved of the accident area one hour before the accident occurred. This may indicate how the debris came to be on the floor. Perhaps another customer dropped a grape on the floor, but an employee walked by it without picking it up. This would lead to a finding of negligence on the part of the store, even if the floor logs show regular and routine inspections were being done.

Finally, employees are often asked to give statements if they had any communication with the injured customer or if they were witnesses to the incident.

Once all this material is collected, this information package, or “defence package,” is sent to the store’s head office or insurance company where liability is determined. Sometimes, after an incident, a manager may offer a payout at the store level in exchange for a settlement release—before a customer even has time to realize the extent of their injuries.

When should I file a claim?

Most claims should be filed within two years of the incident. There are special circumstances in Nova Scotia, only, in which the deadline can be extended for as long as four years, but those instances are rare and cannot be depended on. This two-year deadline is referred to as the statute of limitations and is covered by legislation within each province.

Does my case have to go to trial?

No, cases often settle without going to trial when lawyers for the injured party and the insurance company reach a settlement. They will often make an initial low settlement offer to resolve the case in a hurry, but it is in the client’s best interest to gather the right evidence and work through the court system. A claimant needs procedural leverage or evidence to get a fair result. A hurried settlement is usually too low.

Informal negotiations between the injured party’s lawyer and the insurance company are different from a judicial settlement conference or mediation. A JSC is a formal discussion of the case between the injured party, their legal representation, and the insurance company, which is overseen by a judge. Mediation is similar but is conducted by a professional mediator rather than a judge. A settlement may often be reached during or shortly after one of these conferences.

Having this date scheduled gives a claimant more leverage to set a fair settlement. As Sun Tzu says in The Art of War, “if you want peace, prepare for war.”

When a settlement is finalized, any pending litigation is voluntarily dismissed.

Can I be held responsible for my fall?

Even if a person is found partly responsible for their fall, they may still be entitled to compensation. Contributory negligence, as this principle is known, means that an injured party bears some responsibility for the accident but is not entirely to blame. If a judge finds the injured party was 25% responsible for the accident, then final compensation will be reduced by that amount, and the injured party will be paid $75,000 rather than $100,000, for example.

What if I can’t afford a lawyer right now?

Lawyers who work on a contingency basis, as we do at MacGillivray Injury and Insurance Law, do not get paid until a settlement or judgment is reached for the injured party. The lawyer fee is based on a percentage, which is calculated depending on several factors such as the province, type of case, and how far it has advanced. A contingency fee basis is in contrast to an hourly rate that some lawyers charge, regardless of the outcome of the case. With a contingency fee we try to walk hand in hand with you across the bridge to justice, rather than operating a toll booth.

How can a lawyer help me?

A personal injury lawyer knows the law and will work to move the process along as quickly as possible to obtain compensation for the client. Insurance companies try to delay settlements for significant claims, hoping the injured party will take a low offer out of frustration or desperation.

A lawyer knows how to assess the case and will negotiate with the insurance company toward a fair settlement. Sometimes, experts are required to create reports for a case and maximize claim value. An experienced lawyer can secure the right expert, such as a medical professional or an accident reconstructionist. A lawyer can also identify what evidence is needed to support the claim and knows how to gather it.

If you’ve been injured in a store due to negligence, you can request a free consultation with MacGillivray Injury and Insurance Law to determine the options with your case and how to proceed.