Nagrare v Swirls Cup Cakes, 2017 ONSC 2567 (CanLII)
The Plaintiff, Ms. Sangeeta Nagrare, tripped and fell when she caught her foot on the threshold of the doorway while entering the Swirls Cup Cake store (Defendant). Ms. Nagrare suffered dental fractures and a head injury.
Ms. Nagrare reported that she simply tripped on the step up into the store. She reported that she was aware of the step and was conscious of it as she entered the store.
The step into the shop had no crack, irregularity, or jagged edge.
There was a clearly visible red warning sign (“watch your steps”) in all lower case letters at the bottom of the door and just above the threshold.
Judgment was found in favour of the Defendant.
Plaintiff’s Human Factors Position
The unnamed expert provided two points of human factors evidence:
- The warning sign should have been printed in all capital letters rather than all lower case letters based upon guidance found in an American textbook.
- The colour of the sign, red, represented a too high level of danger. The warning sign should have been yellow rather than red.
Defendant’s Human Factors Position
The Defence did not call upon a human factors expert and provided no human factors position.
The non-human factors Defence expert reported that the threshold and entrance were properly constructed in compliance with the Ontario Building Code and was in a good state of repair.
The judge felt that the difference between capital and lower case print “seems to me to be a distinction without a real difference” as the lower case letters were perfectly legible and clearly discernable from several steps away from the door. The judge wrote “Plaintiff’s expert seems to be reaching here for something but has come up with very little.”
Regarding the colour of the sign, the judge felt that the Plaintiff’s expert was "nonsensical". By using a red colour rather than a yellow colour for the sign, the Plaintiff’s expert opined that the warning was ineffective because it was too prominent and strong. The judge wrote “It is hard to take this expert opinion seriously.”