On June 16, 1995 Thora Marche slipped on a grape and fell in the produce section of a Sobeys’ grocery store. She injured her lower back and sued Sobeys for negligence. At trial, the court learned that Sobeys’ safety committee required each department to maintain a log recording when items were removed from the floors and when floors were swept or cleaned. The maintenance log on the day of the accident showed entries at 8:00 a.m., 8:35 a.m. and 9:45 a.m. However, the employee who made the entries could not remember whether he had cleaned all of the produce section each time, or only a portion. In addition, the assistant produce manager had made a visual inspection of the entire produce area at 10:00 a.m. The plaintiff’s fall occurred around 10:15 a.m.

Store employees testified that items like grapes fall to the floor more regularly than other items and are one of the most likely items to land on the floor. During peak season grapes are usually displayed loose, which means they are more likely to fall on the floor and mats are used to prevent people from slipping. As June is not a popular season for grapes and there were not many grapes on display, mats were not used on the day of the accident. No warning was posted about the danger the grapes posed. A photograph taken on the day of the accident revealed that the grapes were not wrapped, but were displayed loose in their box.

The trial judge found Sobeys liable for failing, as an occupier of premises, to exercise reasonable care to prevent injury from an unusual danger of which it knew or ought to have known. The fact that the grapes were loose and that grapes have a tendency to fall fairly frequently created a level of risk that, in the absence of mats, required something more than inspections or scheduled sweeping. Because of the level of risk, the standard of care for the produce area was higher than that of other areas in the store.

Sobeys appealed the decision claiming that the trial judge erred by imposing the wrong standard of care. It argued that in fact the standard imposed by the trial judge was one of near perfection, not reasonable care. Sobeys claimed the trial judge had required them to guarantee the plaintiff’s safety. The Nova Scotia Court of Appeal found that the trial judge did not impose a standard of care that was too high, nor had he erred in concluding that the appellants had not met the reasonableness standard. The appeal was dismissed.