An 'Employees Only' sign is not a proper warning to satisfy the applicable standard of care: court
The New Brunswick Court of King’s Bench has recently ruled that a bar and restaurant is liable for one of its patrons who fell down the basement stairs in the bar’s premises.
In Francoeur v Le Kozy Bar Inc., 2023 NBKB 89, Jessica Francoeur went to a bar and restaurant with her spouse and friends. She consumed some alcohol before and after dinner. A few hours later, she went to the bathroom at the back of the bar. She opened a self-closing door with a small “Employees Only” sign leading to the basement. After Francoeur stepped onto the top stair without landing, the door pushed her forward and closed behind her. She failed to find a railing to grab for support because it was improperly constructed or attached. As a result, she fell down the basement stairs and suffered a wrist fracture.
Francouer sued the bar owner, Le Kozy Bar Inc., arguing that the defendant’s breach of the applicable standard of care caused her injury. She relied on expert opinion evidence regarding the condition of the stairs to establish that the defendant violated various provisions of the National Building Code.
The defendant argued that it had warned patrons not to enter the doorway leading to the basement through the “Employees Only” sign. The defendant further asserted that any loss or damage was caused solely by Francouer’s negligence for failing to take necessary precautions and care to ensure her safety.
The New Brunswick Court of King’s Bench acknowledged that it is possible to decide the standard of care without reference to expert evidence. Still, courts may nonetheless rely on expert evidence in some instances.
The court considered that Francouer provided an expert report which said “that the basement stairs are not constructed properly and constitute a safety hazard.” The court said it was incumbent upon the defendant “to put its best foot forward” by presenting any evidence that might refute or contradict Francouer’s evidence. However, the defendant did not do so. As a result, the court accepted that the expert evidence put forward by Francouer was uncontradicted. Based on that evidence, the court concluded that the stairs, the landing, and the absence of a handrail on the left side of the stairwell failed to meet the standards of the National Building Code.
The court found that the defendant failed to adequately warn Francouer of the unsafe condition of the stairs and surrounding area. The defendant argued that the “Employees Only” sign on the door leading to the basement stairs constituted a sufficient warning to meet the applicable standard of care of providing reasonably safe premises to the plaintiff for the purposes contemplated.
The court noted that the defendant invites and allows patrons to the back end of the bar and the garage to smoke. These same patrons have the option of using washrooms situated near the garage. The court pointed out a risk that a patron, such as Francouer, opens the wrong door a few steps away from the garage door by pure inadvertence.
The court found that the “Employee Only” sign did not warn Francouer, who inadvertently entered the basement door from a dimly lit hallway, of the unsafe condition of the stairs and surrounding area. The court said, “To the extent that the “Employees Only” sign constitutes a “warning,” it is not a warning of danger, nor specific to the danger.”
The court considered that Francouer had never used the washrooms at the back of the bar. The unsafe, hazardous condition of the stairs and surrounding area was not so obvious that Francouer was aware of it. The court said that unless specifically warned, a reasonable person may inadvertently enter a door without knowing what exists on the other side.
The court also pointed out that the door had a lock pad, which was not being used on the night in question. The defendant said it was inconvenient for employees to use it whenever they had to retrieve supplies from the basement throughout the night. However, the court said it might take five seconds or less for an employee to enter a code into the lock pad to open the door. The safety of the patrons outweighs any alleged inconvenience to the employees. The court said the best warning that the defendant could have given all patrons was to use the readily available lock pad for the intended purpose, which was to keep the door locked.
The court concluded that the defendant breached the applicable standard of care based on the court’s findings that the stairs were unsafe and constituted a hazard, that Francouer did not receive any specific warning of the danger, and that the defendant failed to ensure the basement door was locked. The court further found that the defendant’s breach of the standard of care caused Francouer’s injury.
