Occupier Not Liable for “Sudden, Random, and Apparently Unprecedented Act of Violence” By Customer

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a lawsuit following a customer on customer assault at a commercial establishment.

In today’s case (Tanaka v. London Drugs Limited) the Plaintiff was shopping at London Drugs when another customer suddenly and unexpectedly punched the Plaintiff in the face knocking him unconscious.  The assailant remained unidentified.  The Plaintiff argued London Drugs should be vicariously liable for the assault either based on the principles of Negligence of Occupier’s Liability legislation.  In dismissing the claim and finding there should be no vicarious liability in the face of a “sudden, random, and apparently unprecedented act of violence” Madam Justice Horsman provided the following reasons:

[45]         In my view, London Drugs took reasonable steps to ensure the reasonable safety of its stores. London Drugs was not under a duty to guard against the sudden, random, and apparently unprecedented act of violence by John Doe #1. There was no foreseeable risk that London Drugs customers might be the victim of unprovoked physical assaults by other London Drugs customers. To impose a duty on London Drugs to guard against such a contingency would render London Drugs an insurer, which is not the standard imposed by the OLA: Coleiro v. Premier Fitness Clubs, 2010 ONSC 4350; Bracken at para. 20.

[46]         I find that London Drugs’ workplace safety policies were reasonable in the circumstances, and followed in this particular case. The police were called when the situation between the plaintiff and John Doe #1 escalated to violence. It is difficult to imagine, in any event, what different policies London Drugs could have adopted to prevent the sudden Assault.

[47]         I further conclude that there was no negligence on the part of Ms. Shewchuk which would give rise to vicarious liability for London Drugs. Ms. Shewchuk acted appropriately, and in accordance with London Drugs policy, in calling her supervisor as soon as she heard the heated verbal exchange between the plaintiff and John Doe #1. There is nothing more that Ms. Shewchuk could reasonably have done to prevent an assault that, on the plaintiff’s own evidence, “came out of nowhere”.

[48]         Accordingly, I conclude that London Drugs did not breach any duty it owed as an occupier in failing to prevent the Assault.