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| Marcel Strigberger |
For about two months now we have been, compliments of COVID-19, basically staying put at home, subject to a daily walk in the neighbourhood and necessary drive to the nearby supermarket. I say drive only, as we do a curbside pickup, ordering online and stopping briefly in front of the store to allow the employee to drop the stash into the trunk.
My wife and I practise social distancing religiously, generally wearing masks even on our walks. We take these things seriously.
Which gets me back to the supermarket. I arrived in front of the store recently and phoned the store announcing my presence, including my name and my unlocked trunk. I had my mask on the passenger seat, not wearing it as I had no intention of leaving my safe bubble, or the bubble I believed to be safe.
After a couple of minutes, out came a woman carrying my order. Her name tag read “Mary.” She was gloveless and maskless. She walked along the side of my car and I expected her to put the two bags into my trunk. Then again earlier on in the year I also expected around now to be watching the NHL playoffs.
Mary suddenly without warning briskly opened my back door, stuck her head in, inches from me, and bellowed, “Are you Marcel?”
I was in shock. I felt like Superman receiving a delivery of kryptonite from Lex Luthor.
I shouted back, “Yes, uggh! Now close my door.”
She closed it. However, realizing she still had my stuff, she opened it once again and this time, she dropped my two bags of cargo onto my back seat. She uttered a loud, “Here we go.” I was certain with the word “here,” she sent of flurry of toxic droplets my way.
Two thoughts crossed my mind.
The first was, given the social undistancing event that just took place, I am undone. The incubation clock is now running. I almost felt like abandoning my Lexus and walking home. I was sure my car insurance company would understand and cover the loss.
However concurrently, interestingly, the lawyer in me took over. I asked the question; do I have a claim for negligence against the supermarket? Even if I escape getting infected, I had suffered a severe case of mental distress. The Supreme Court of Canada held in Mustapha v. Culligan [2007] S.C.C.A. No. 109, that dead fly in the water cooler case, that not every scary event will lead to a successful claim in mental distress. It has to be reasonably foreseeable that the event will cause injury to a person of “reasonable fortitude.”
My first inclination, while still in front of the store, was to Google that case and see how sound my claim would be. Mustapha went bananas after just seeing a dead fly in a water cooler bottle. In my case we were talking coming face to face during a pandemic with Bloody Mary. She burst my bubble.
A few days later I called the store asking to speak to Mary to see how she was doing, hoping to detect from her voice, a non cough. I couldn’t reach her as the receptionist told me she was out carrying groceries to waiting cars. Yikes! My brain started thinking class action.
I had no doubt this fright would blow away anybody of any degree of fortitude. Even Sir Winston Churchill would have freaked out. We are dealing with a serial contaminator.
A couple more days have rolled by since and fortunately I feel better. I don’t intend to pursue the matter further. It also occurred to me that should I sue, the defendant might suggest I was liable for contributory negligence in that I did not wear my readily available mask. It would be something like that “not wearing a seatbelt” argument. It can reduce your claim big time.
I have even placed a fresh order with that store. I know for sure when I get there, I’ll be wearing my mask and keeping the doors locked. I have recovered my reasonable fortitude.
Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. Visit www.marcelshumour.com.
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