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The Olivier v. Pat and Mario’s Restaurant court decision was released by the Ontario Superior Court of Justice in Sudbury on January 16, 2013.

On March 1, 2008, 81 year-old Wanda Olivier went to Pat and Mario’s restaurant in Sudbury. Mrs. Olivier was attending a birthday party in the “back room” of the restaurant.  Leading into the room there is a step which is a 5½ inch elevation with an overhang which extends one inch past the step. To the right of the step there is an 8 x 10 inch sign which has on it printed in red, “please watch your step”. It was at this step where Mrs. Olivier suddenly slipped and fell. As a result of the fall, Mrs. Olivier suffered a broken right shoulder which required surgical intervention and physiotherapy.

Ms. Olivier hired Ontario personal injury lawyers and sued the restaurant for damages as a result of her slip and fall accident and injuries.

The Restaurant submitted that it has met its obligation under Section 3(1) of the Occupier’s Liability Act and that its premises were reasonably safe and further that it did all that it could to ensure the safety of Mrs. Olivier while she was on the premises. The Restaurant’s position is that Mrs. Olivier was, on more than one occasion, verbally warned of the step into the back room and the sign posted provided a sufficient warning. Mrs. Olivier submitted that there was no verbal warning of the step, particularly because there was no staff member accompanying her to the back room. Furthermore, Mrs. Olivier claimed that her view of the step and the warning sign was obstructed due to the route taken to the back room.

According to the witness testimony of Mr. Jaas, a patron of the Restaurant, the steps and sign leading into the back room were directly in front of the Mrs. Olivier due to the route she took to the back room. He also confirmed that there was a staff member accompanying Mrs. Olivier who stated “please watch your step”, 9 to 11 feet from the step.

The court considered the witness testimony presented and concluded that the Restaurant did not take such care in all the circumstances that was reasonable to ensure that Mrs. Olivier was reasonably safe while on the premises of the Restaurant. The court stated that the Restaurant breached their duty to keep the premises safe because the steps were not illuminated in any way. The court further added that neither the size nor location of the sign provided Mrs. Olivier with an adequate warning of the inherent danger in the elevation. However, the court determined that Mrs. Olivier was not as diligent in walking up the stairs. Mrs. Olivier was apportioned 25% of the liability because she admitted to being “excited” about the party and disclosed that she shifted her sight from the floor to look into the back room as she was stepping on the elevated step.

When assessing damages, the court noted the testimony of Dr. Cheong, Mrs. Olivier’s physician. She concluded that Mrs. Olivier’s shoulder was fractured and out of place and that surgical intervention was necessary to hold the shoulder in place and to allow it to heal. Mrs. Olivier lost a range of motion in the shoulder and required physiotherapy. Dr. Cheong reported that she expected “no further improvements” and that the shoulder reached a point of “tolerable pain”.

The court awarded Mrs. Olivier 75% of the following damages:

• $50,000 – damages for pain and suffering
• $1,015.99- special damages for an electronic chair

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