Plaintiff awarded 49K for Amputated Finger Injury at Premiere Fitness

Nearly 50K Judgment Against Premiere Fitness for Not Having Proper Functioning Cleaning System in Place When Man Injured.

In the recent case of Dhaliwal v. Premier Fitness  the plaintiff Sukhjinder Dhaliwal sued premier fitness for a personal injury he suffered while exercising on a weight machine. He sought damages for pain and suffering, as well as compensation for loss of past income, loss of future earning capacity, and some special damages for medical expenses.

What happened?

amputated finger bandagedThe facts were fairly interesting. On the day in question the plaintiff was exercising his legs. At some point he began the weight training part of his exercise regime by using the vertical leg press machine. He told the Court that he was familiar with it and that he had probably used it over 100 times. The vertical leg press is the machine where a person lies on his back and pushes the square metal platform up with his legs. There are plated weights on either side of the machine. Once the weights have been moved to this upward position, the person is then able to move aside, with their hands, the locking mechanisms the weights otherwise rest upon. This allows the weights to be moved up and down freely with the legs, and with as many repetitions as desirable.  Once the repetitions are complete, the person again pushes the weights to the upward position, and then moves the handles of the machine inward again to restore the safety locking mechanisms.  When the “weight sled” is safely returned to its original locked position, the person using the machine can then get up from the bench.

The plaintiff did 3 sets. After his third set he went to get a drink of water. He was wearing Nike workout shoes. He had to walk about 90 feet to the fountain. When he drank from the water fountain that day, the plaintiff noticed that the floor around the fountain was soaked with water, and then he realized that his shoe was wet. Getting his shoes wet around the water fountain had happened to him before.  When this had happened in the past, he had informed the management of the club. As he walked back to the leg press machine he “stomped” his feet to try and get the water off them. He got back to the machine and took a look at his shoes and thought that they were ok.

He got back on the machine and began to push the weight sled upward. His right foot slipped off the foot platform toward him.  At that point, his hands were still in the handles on the safety mechanisms.  When his right foot slipped off the platform, he lost his balance and his whole body moved to the left.  He knew he could not hold the entire weight with only one leg, so he quickly tried to move the safety lock mechanisms back into place.  He was not successful.  Instead, his right hand moved toward the downwardly moving weight sled, and the end of his right pinky finger got caught under the weight sled and was crushed. The plaintiff maintained that his right foot slipped off the foot platform as a result of the water that was still on his shoes from the water fountain area.  The plaintiff testified that it was not the weight itself that was the problem.  He had lifted even greater weight in the past.  He was not worried about being able to lift the 365 pounds.

Sukhjinder’s Injuries

The accident effectively amputated the end of the fifth finger of the his right hand.  At the hospital, the plaintiff went through a surgical revision of this amputation under a regional anesthetic.  The wound was cleaned, stitched and dressed.  The plaintiff took only a few days off from work, and returned shortly to his job.  He was in occupational therapy for some three months.  He made a relatively speedy recovery, but the amputation is a permanent and serious disfigurement of the his right hand. Unfortunately his nail bed did not stop growing and he had to return for more surgery to remove this still-growing nail bed.  He spent just one day in the hospital, but the surgery left him with further stitches and on medication and caused him to be off for work for three weeks.

Liability – Was Premiere at fault?

The question that was asked was whether Premier Fitness were in breach of their statutory duty of care, or whether they kept the fitness club premises reasonably safe for its members (as required by s. 3(1) of the Occupier’s Liability Act.)  The plaintiff’s lawyer relied on a lot of “supermarket cases” which in a sense, is a similar situation.

The first thing the Court looked at was the maintenance system that was put in place by Premier Fitness.  The Court noted that the club had contracted a full time cleaning staff.  The arrangement was to have one male and one female cleaner in the club at all times during operating hours.  Their directions were to “keep it clean”.

The fitness club staff and other employee were also expected to help clean the club.  If any of them became aware of spilled water, they knew where the mops were and understood that there was a common sense approach on quickly dealing with cleaning up anything messy.  The club further testified that their members were somewhat sloppy when they filled their water bottles at the fountain, causing water to be spilled.  They acknowledged that whenever they noticed water they would put a yellow wet floor sign in the area.  There was also a perforated mat around the water fountain which would allow water to move to the floor.

The plaintiff, on the other hand, argued that the water spilling from the fountain was a chronic problem and that the defendant neither fixed the problem nor put a system in place that would reasonably ensure the safety of its members.  There were no regular inspections at the water fountain area despite its chronic water spillage problem.  There were no logs kept to prove that such inspections had taken place.

What did the Judge say?

 The Judge was satisfied that the plaintiff established in all circumstances of the case that the defendants failed in their affirmative duty to make Premier Fitness reasonably safe for its members by taking reasonable care to protect them from the foreseeable harm of chronic water spillage.  The Judge reached the conclusion not because of any deficiency in the maintenance program that Premier Fitness devised for their fitness club, but rather because there is a complete absence of evidence that this maintenance program was implemented and in proper and active use on the day of the plaintiff’s accident.  In other words, they say they have a system in place but there is no evidence that the system in place was working.

There is little point in having an effective maintenance system in place to protect customers, patrons or members of an institution if that maintenance program is not consistently and routinely followed and practiced.  If a store, airport, shopping mall, grocery store or gym has a maintenance program in place; it must be fully and properly implemented in practice especially on the date when someone injures themselves.  The Judge realized that there was some sort of reasonable maintenance system in place at Premier Fitness.  He recognized that there was a floor mat put down around the fountain.  He realized that there was a janitorial closet close by filled with mops and that any employee in the facility was required to quickly clean up if they saw there was water.  The Judge found that the gym was not supposed to guarantee any absence of water on the floor.  For example, it would be unrealistic to simply remove the fountain, exchange the fountain for a different fountain or hire someone to maintain a visual guard of spilled water.  All of this is unrealistic.  What the Judge was saying is that there was no evidence to prove that the defendant cleaner’s routinely followed any type of reasonably strict cleaning schedule and/or maintained a log of regular inspection to ensure the defendant’s direction were followed in practice.  Also, the judge realized that the plaintiff argued that there was no evidence that this maintenance system was being followed on the day the plaintiff was injured in the fitness club.  In the Judge’s words, “it may have been operational – there is just no evidence before me that it was operational”.  There was no evidence that there was even a single cleaner on duty in the defendant’s fitness club.  No such cleaner was called as a witness to give evidence.  No business records were tended to show that a cleaner had been at work that day.  None of the witnesses that were called to give evidence in the case testified about the presence of a cleaner in the fitness club on the day of the accident.  The Judge noted that presumably, had there been any cleaners present at the fitness club throughout the club’s hours of operation on the date in question, perhaps the defendant’s maintenance system could have been contemplated.  The Judge found it would have been easy enough to establish that fact but rather there was no evidence at all to suggest that this aspect of the maintenance system was operational that day.  Secondly, even assuming that if there were two cleaners in attendance at the fitness club on the date of the accident, there was no evidence presented as to the activities of those cleaners on the day of the accident.  There was nothing showing that the water fountain area was inspected or cleaned on any part of that day.  There is no evidence that on the day in question, anyone placed a yellow wet floor sign on the floor to warn of the potential dangers of the wet floor.

The plaintiff proved in the case that the defendants were in breach of their duty and care.  An adverse inference was drawn against the defendants for their failure to call evidence on any of the above.

Accordingly, for the reasons above, the Judge was satisfied on a balance of probabilities that Premier Fitness failed in their legal duty to make the gym reasonably safe for their members by taking reasonable care to protect people from foreseeable harm on that day.  They permitted puddle water to collect near the water fountain, near the weight room knowing that members frequented the water fountain during the course of their workouts, on a regular basis through that day.  The Judge found that the accident was in fact caused by the water on the plaintiff’s shoe.  The Judge found that the plaintiff’s right foot slipping off of the leg press platform on the vertical leg press machine was the only plausible explanation for that accident which caused his injury.  The total amount of compensation awarded to the plaintiff was $48,884.84.

However, the Judge found that the plaintiff candidly admitted that he knew he was operating the vertical leg press machine after stepping in water and also admitted that operating the vertical leg press machine could be dangerous if his shoes were wet.  He personally foresaw the risk of operating the leg press machine with wet shoes.  The Judge found that he was in fact negligent in failing to ensure that his shoes were not wet before beginning his fourth set on the machine.  There were a number of sensible options that he could have taken to prevent his injury.

Pain and Suffering and Loss of Income Award

The Judge in effect cut the $48,884.84 given that he found that 50% of the problem lied with his own negligence.

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This was NOT self-defence. Fist Fight Brings Victim $55,000.00 in Damages.

Judge Rules that Defendant did not react in self-defence.

The Toronto Star posted a great article here a few days ago about a Moses Mahilal  who came home to find someone in his mother’s house.  He made a beeline for the kitchen, grabbed a large knife and ran upstairs, where he confronted the intruder hiding behind a door and seriously wounded him. Hours later Mahilal was under arrest and charged with aggravated assault. A preliminary hearing is set for Sept. 11.

I often get this questions from a civil perspective. What if someone breaks into my house and I hurt them, can they sue me? What if someone claims assaults me – how far can I go to defend myself?

The case below is a good example of our Courts’ analysis on how far the argument of self-defence can really take you.

In the case of Ellis v. Fallios-Guthierrez the plaintiff Ellis sued the defendant for battery claiming that he suffered significant physical and emotional injuries in a fist fight.  The fight between the two men took place in the defendant’s basement apartment in the early morning hours of January 20, 2006.

About the plaintiff and defendant

scales of jucticeAt the time of the assault, the plaintiff was 21 years old.  He was living at home with his parents and siblings.  He had a full time job.  He enjoyed sports and socializing.  He essentially lived a life that any man his age would live.  The case tells us that the plaintiff was romantically interested in a young woman named Melissa DeLuca.  They were friends for quite some time and the plaintiff always wanted to take the relationship the next level.  Another interesting thing about the plaintiff was that he a knife collection, together with his brothers.  When he was approximately 12 years old he started collecting different types of knives.  Once in a while he carried one of these knives in his pocket for his protection.  He never threatened or hurt anybody throughout his life and he denied ever taking them out to a movie theatre or a bar.

The defendant was 35 years of age at the time that the events happened.  He lived with his sister in the basement apartment of the home that she owned with her family.  He had a criminal record, specifically, having convictions for impaired driving, assault, mischief and possession of a weapon.

The Facts

The plaintiff and the defendant became friends approximately one year before the event in question.  They lived in the same area.  They began to hang out once in a while and talk about cars, their families, problems and women.  They would often go out for dinner or have drinks together.

At one point the defendant met Ms. DeLuca, the plaintiff’s romantic interest.  Notwithstanding the difference in their age (and the fact that she was the love of his friend’s eye) the defendant began to pursue her romantically.  He sent her flowers, sent her presents and wrote her poetry.  These feelings were not reciprocated by Ms. DeLuca.  He persisted nevertheless but she made it clear on numerous occasions that she wanted him to stop contacting her.  It got to the point where he would attend her place of work.  She had to eventually get a restraining order to prevent the defendant from pursuing her.  The plaintiff was clearly upset and angry with the defendant about his conduct and relation to Ms. DeLuca.  The plaintiff eventually cut off the defendant from friendship and stopped talking to him.  At one point the plaintiff forgave the defendant, but they did not return to their previous level of friendship.

On the evening on January 19, 2006, the plaintiff met up with some friends at a barbeque.  He had a couple of beers.  He eventually went to the Moose and Firkin at approximately 10:00 p.m. they had some more drinks and played pool.  The defendant was there.  The plaintiff and the defendant talked and all seemed well.  The plaintiff and his friends decided to leave the bar to go to another sports bar.  The defendant tagged along.  On the way to the second bar, the parties argued.  The arguments continued when they got out of the truck and were in the parking lot of the bar.  At one point, according to the plaintiff, the defendant stuck a lit cigarette in his mouth, chewed it and then spat in all over the plaintiff’s chest.  A pushing match began but eventually one of the plaintiff’s friends intervened, stopped the altercation and achieved peace between the parties by suggesting that they go have another drink.  The manager of the second bar had witnessed what happened in the parking lot and prohibited everyone from entering.  According to the plaintiff they all agreed that they wanted another drink and the defendant invited them back to his basement apartment.  The plaintiff was still frustrated with the defendant for spitting on him.

What occurred at the plaintiff’s apartment was divergent among the parties.

The plaintiff said that eventually they had a drink, frustrations heightened to new levels and a fight broke out.  The story of how that fight broke out differed between the plaintiff and defendant.  You can read more about the factual circumstances about how the fight broke out by clicking here. What was agreed to was that the plaintiff and the defendant began fight, the defendant got on top of the plaintiff, straddled him with his knees on the ground on each side of the plaintiff.  He repeatedly punched him in his head and face.  The plaintiff eventually threw some punches too but kept taking shots.  At one point the defendant grabbed the plaintiff’s hands and held them down.  He crossed the plaintiff’s arms at the wrist and held them together with his left hand.  The defendant’s evidence was that he was trying to control and subdue the plaintiff, who he believed catalyzed the assault.  The plaintiff began punching up at the defendant in an effort to get him off.  The defendant again tried to grab the plaintiff’s hands and at that point it is alleged that he bit the plaintiff’s right wrist.  The plaintiff attempted to strike the defendant with his left hand and the defendant bit him on his left bicep.  When the plaintiff was trying to get him off, the defendant, surprisingly, bit the plaintiff’s face and tore off a portion of his upper and lower lip on the right side of his mouth.  The defendant’s evidence was that the defendant swallowed a portion of the plaintiff’s lip that he had bitten off.  He testified that he saw the plaintiff with a big smile on his face, reach down towards his pants or pocket.  His first thought was that he was going for his knives.  At that point he tried to head butt the plaintiff but the plaintiff turned and the defendant bit him on the face instead.  At that point everyone got up.  The defendant grabbed the knife and began chasing the plaintiff.  Eventually the plaintiff and his friends got away.

The Court’s Decision – was this self-defence?

The Judge analyzed the tort of battery and also a defence put forth was that the defendant, which he believed that he was using self-defence.  The law states that an individual is legally justified in employing intentional force against another, if such force is used as a preventative measure to defend themselves or their family.  The law tells us that the force used by the defendant must be reasonable and proportionate to the harm that is threatened.  It cannot be excessive.  It must not be used a vehicle for opportunistic revenge or disproportional counter-attack.  What is reasonable depends on the facts of each case.  Assessing the general proportionality of the force used by the defendant, there must be some flexibility or leeway accorded.  Also, in contrast to criminal law, the onus of proving that the use of force by the defendant was in self-defence is cast upon the defendant who invokes the defence.  The defendant must prove not only that the occasion warranted defensive action, but must also show that the force was not excessive.

The Judge had no doubt in concluding that the fight took place between the parties because of comments started by the defendant.  He told the defendant at one point he did not like him or did not like his family. The judge found that it was the plaintiff indeed that challenged the defendant to a fight.  The plaintiff was still angry at the defendant’s conduct in relation to Ms. DeLuca.  The plaintiff challenged the defendant to a fight and affectively provoked a fight that ensued among them.  The Judge also looked at other issues such as the provocative language used by the plaintiff, and that the fight was initially consensual and that the Judge was satisfied that both the plaintiff and the defendant initially embarked upon their physical confrontation by impliedly agreeing to fight.

With respect to the self-defence, the judge did not accept the defendant’s evidence as to his true purpose of embarking on this physical confrontation with the plaintiff.  Essentially the judge found that the defendant agreed to fight the plaintiff because the plaintiff was threatening him.  The plaintiff admitted during his testimony that he was not acting out of fear but acting out of rage due to the words uttered by the defendant.  The defence was rejected given that the defendant did not establish that his conduct was reasonable and proportionate to the harm threatened.  The conduct of the defendant was clearly excessive.  After the plaintiff was under his control, he serious injured the plaintiff physically and psychologically by biting off a portion of his face.

Damages

Doctors testified that the plaintiff lost more than 25% of his lip tissue.  Even after cosmetic surgery he had permanent scarring around his lips and did not have a normal facial smile expression.  He suffered decreased sensation and motor function of his lips.  The damage had a big impact on the plaintiff’s life.  He continues to suffer social embarrassment, diminished self-esteem, an undercurrent of despondency, depression and anxiety.  He cut himself off from his friends and family and suffers from social phobia stemming from his embarrassment over his facial scarring.  His psychological impairments greatly hampered his future career goals and social relationships.  The Judge awarded the plaintiff $50,000.00 in compensatory damages for pain and suffering and loss of enjoyment of life, the plaintiff was also awarded $1,000.00 in special damages to pay for additional reconstructive surgery.

Whether or not he can collect the awarded compensation is obviously another story.
 

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