Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a produce vendor liable for injuries sustained when a shopper slipped and fell on a dropped grape.
In today’s case (Davis v. Kin’s Farm Market) the 75 year Plaintiff was shopping in Lynn Valley Mall in North Vancouver. As he walked “past the fruit and vegetable display tables located outside of Kin’s Market, he slipped and fell on a green grape“.
The grape was just outside of Kin’s Market in an area that was “encroaching somewhat into the marbled tiles forming the mall pedestrian corridor“. The Plaintiff sued the owner of the Mall and the produce store.
The Defendants argued that the Plaintiff was at fault for his injuries and that they were not responsible because they had a reasonable system to deal with hazards on the floor. However, this was contradicted by a witness who gave evidence that “several hours after the ambulance took (the Plaintiff) away” there were “more grapes on the marble tiles immediately outside the store” and that after bringing these grapes to the attention to the employee in charge of Kin’s Market “this employee took no steps to clean up the grapes“.
Madam Justice Bruce went on to find both Defendants liable for the Plaintiff’s injuries. Specifically the Court reasoned as follows:
 In addition to having no reasonable system of inspection and maintenance in place to address spills from the bins and display tables outside the store, I find that the employees were not complying with the standards set by their employer on the day of the accident. Ms. Janda’s evidence tends to show that the employees of Kin’s Market were lax in regard to the cleanliness of the areas surrounding the bins. While evidence of a failure to comply with the cleaning policies well prior to the date of the accident cannot be used to infer such a failure on the date of the accident, in this case there is evidence that just hours after Mr. Davis’ fall there were more grapes on the marble tiles adjacent to the bins displayed by Kin’s Market. This evidence suggests that the employees of Kin’s Market had rather poor powers of observation. Moreover, the fact that on two occasions on June 5, 2005, employees of Kin’s Market took no steps to clean up fallen grapes after the spills were brought to their attention strongly suggests that they took no responsibility for any produce that landed beyond the brick tiles.
 Lastly, Kin’s Market argues that even if it failed to meet the standard of care owed as an occupier, the fact that the Owner met this standard removes any responsibility they may have for the accident. I am unable to accept this argument. Where there are two occupiers of premises, each of them owes a duty of care to persons invited to enter the premises. The fact that the Owner may rebut a prima facie breach of the Act does not obviate the necessity for Kin’s Market to also satisfy the two pronged test articulated by the Court of Appeal inAtkins. Permitting grapes to remain on the floor as a hazard is negligent absent proof that a reasonable system of maintenance and inspection was in place and being followed on the day of the accident. Kin’s Market has failed to satisfy this onus and it is irrelevant whether the Owner has led evidence that shows it met the required standard of care.
The Court went on to find that the Plaintiff was not at fault for falling reasoning as follows:
 Kin’s Market argues that Mr. Davis had an obligation to keep a proper look out for his own safety and to be aware of his surroundings: Gervais v. Do, 2000 BCSC 1271,  B.C.J. No. 1732. Kin’s Market points to Mr. Davis’ admission that his attention was not directed to where he was walking before he fell; rather, he was looking toward the Shoppers Drug Mart. He was familiar with the mall and could have avoided the fall had he been paying attention to the floor where he was walking…
 In my view, it is not reasonable to expect Mr. Davis to be staring at his feet as he walked through the mall towards the Shoppers Drug Mart. Had he positioned his head in a downward direction to detect possible hazards on the floor, Mr. Davis may have stepped over the grapes in his path; however, he may also have run into another mall patron possibly causing damage to himself and the other person. It is also understandable that Mr. Davis would not be cognizant of the risks associated with walking in the common area of the mall adjacent to Kin’s Market, particularly as he was three to four feet from the display tables. He was not inside the store where he may have been alerted to the possibility of produce that had fallen to the floor. Lastly, I find Mr. Davis’ circumstances are similar to that found by the Court of Appeal in Coulson. The tenants in the mall design their displays to attract customers’ eyes. They do not encourage patrons to keep their eyes on the floor ahead of their feet. As Bauman J. (as he then was) said in Dufty v. Great Pacific Industries Inc., 2000 BCSC 1474,  B.C.J. No. 1988 at para. 44:
 As to the issue of contributory negligence, it has been said many times, most recently by Justice Burnyeat in Coleman v. Yen Hoy Ent. et al, 2000 BCSC 276 [In Chambers], that while there is a duty on the plaintiff to be aware of her surroundings, it is not the case that she is required to “glue her eyes to the ground.”