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Tanaka v. London Drugs Limited: Store Not Liable for Customer-on-Customer Assault


It is well-established in B.C. law that the “occupier” of a property, such as a retail store, can be held liable for a personal injury sustained by members of the public due to negligence. This does not mean the occupier is automatically responsible for every injury that occurs on its property. Instead, the B.C. Occupiers Liability Act (OLA) states the occupier has a duty to ensure its premises are “reasonably safe.”

Although premises liability claims typically involve physical hazards, such as a puddle of water in the middle of a store aisle, it may also cover purely human-created safety issues. But again, the store does not have to absolutely guarantee a customer’s safety at all times. The legal test is always one of “reasonable care.”

Take this recent decision from B.C. Supreme Court, Tanaka v. London Drugs Limited. This case involved a plaintiff who was assaulted while shopping at a London Drugs Store. The assault actually took place 16 years ago, in October 2003, at what was then a London Drugs location at 665 West Broadway in Vancouver (near the intersection with Heather Street). The plaintiff went to the store to return a defective item.

While the player was speaking with a customer service representative, two people–a man and a woman–came up behind him. According to the plaintiff, the woman complained he was “taking too long” to speak with customer service. The man then repeated this complaint “in a more demanding and forceful tone.” Then, “out of nowhere,” according to the plaintiff, the man “challenged” him to a fight. When the plaintiff refused, the man “punched the plaintiff in the left eye.” The plaintiff said he lost consciousness for a few minutes and was later “picked up off the floor” by London Drugs employees.

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The man and woman were never identified. London Drugs did provide a surveillance video of the incident. According to the trial judge, the video was “not of perfect quality.” There was a delay of “a few seconds between each frame.” Despite the limitations of the recording, the judge noted it did largely corroborate the plaintiff’s version of events: The plaintiff was talking to the customer service representative “while John Doe #1 and Jane Doe #2 pace behind him.” John Doe #1 then “confronts the plaintiff.” The video does not show John Doe #1 punching the plaintiff in the eye, but it does show the plaintiff “falling to the ground.” The video went on to show the store’s supervisor and other employees “immediately responded” to the scene.

Judge: Store Had No Duty to Protect or Warn Plaintiff

In 2005, the plaintiff filed a personal injury lawsuit naming London Drugs and the unknown John and Jane Does as defendants. Although the plaintiff was initially represented by a personal injury lawyer, he subsequently represented himself at trial. There were a number of delays in prosecuting the case, which was not tried until June 2019. The judge issued her decision with respect to liability on July 19, 2019.

The judge dismissed the plaintiff’s lawsuit in its entirety. The main legal question was whether or not London Drugs could be held responsible for the assault on the plaintiff under the OLA. The judge broke this down into three questions:

  1. Did London Drugs breach its duty to the plaintiff by failing to prevent the Assault?
  2. Did London Drugs breach its duty to the plaintiff by failing to warn him about the risk posed by John Doe #1?
  3. Did London Drugs breach its duty to the plaintiff by failing to detain John Doe #1 following the Assault?

The answer to all three questions was “no,” for the following reasons:

  1. The judge found London Drugs “took reasonable steps to ensure the reasonable safety of its stores.” The store was not required to guard its customers against a “sudden, random, and apparently unprecedented act of violence.” Indeed, London Drugs’ own safety manager testified this was the only time during his 38 years with the company that there was a “physical altercation between customers.”
  2. There was no duty to warn the plaintiff, the judge found, because there was no evidence the store knew of the risk posed by John Doe #1. In fact, there was evidence presented that showed John Doe #1 “had previously been in the West Broadway store on the day of the Assault” or engaged in any behaviour that should have prompted the staff’s concern.
  3. London Drugs did not have any legal duty to “detain or investigate” John Doe #1 following the assault. The judge noted imposing such a duty would “require London Drugs staff to risk their personal safety by attempting to detain a violent individual for the sole purpose of protecting the plaintiff’s economic interests,” i.e., the plaintiff’s ability to file a personal injury claim against John Doe #1.

On this last point, the plaintiff argued at trial that London Drugs did assume a duty to detain John Doe #1. Another customer at the store that day said in a written statement to the Vancouver Police Department that “an unnamed London Drugs employee had told him to take John Doe #1 outside.” Unfortunately, this customer never testified at trial himself. None of the London Drugs employees who did testify could recall every telling the customer to detain or remove John Doe #1. The statement to the police itself was therefore deemed inadmissible hearsay by the trial judge.

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Cases like this illustrate the critical importance of conducting a full and complete investigation before filing a lawsuit. It is essential to identify all of the potential witnesses–and in this case, all of the defendants–beforehand. As the judge in this case noted, “The plaintiff has had 16 years to identify the defendants John Doe #1 and Jane Doe #2, and had not done so by the time of trial.” This, among other things, effectively doomed his personal injury claim.

Do not put yourself in a similar situation. If nothing else, do not file a lawsuit without first speaking with an experienced Vancouver personal injury lawyer. If you have been injured as a result of someone else’s negligence or deliberate act, contact Preszler Injury Lawyers in Vancouver today to schedule a free consultation with a personal injury lawyer.

Source:

https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc1182/2019bcsc1182.html

 

 

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