YORKTON – A judge is allowing a woman’s negligence lawsuit to proceed against two companies after she says her lift didn’t function and she fell to the basement.
Joann Zapshalla seeks damages for personal injury. She alleges there was a mechanical failure of the lift in July 2016 and she was injured as a result.
Yorkton Court of King's Bench heard that she pushed the call button on the main floor of her home, wanting the lift to take her to the second floor. After pushing the call button, the lift door became unlocked. She opened the door and stepped into the lift space but the lift wasn’t present and she fell to the basement floor.
Zapshalla went to the Yorkton hospital and X-rays revealed no broken bones other than a broken pinky finger. The next day, a doctor at the Regina Hospital put a cast on her right hand and forearm.
The following year, she had surgery in Comox, British Columbia, to repair two tears to her right shoulder rotator cuff. She had physiotherapy and said she had to sleep in a chair from July to October 2017.
She went back to a Regina doctor in July 2019 and he recommended a second surgery of her left shoulder rotator cuff and bone spur.
Zapshalla told the court that since July 2020 she has done a regime of home exercises trying to regain some of her pre-accident mobility and has been given a diagnosis of chronic muscle pain that isn’t expected to improve.
She said she continues to incur medical, hospital, and drug expenses.
Ram and Honeywell lose application to strike claim
Ram Manufacturing Ltd. and Honeywell Limited applied to the court to have Zapshalla’s claim dismissed arguing delay of four years and eight months. In April 2023, Ram filed a notice of application asking the court to strike Zapshalla’s statement of claim. Shortly after, Honeywell filed a similar application.
In June 2018, Zapshalla had filed her statement of claim against Ram and Honeywell, which was about one month before the expiration of the limitation period.
In January 2019 and May 2020, Ram and Honeywell filed their statements of defence, respectively.
The parties had unsuccessful dispute resolution in July 2020.
Zapshalla excused her delay saying that health issues affected her ability to focus on the claim and prevented her from providing an accurate assessment of her damages. And, she said she had disclosed her medical reports to the two companies and was waiting for settlement discussions to continue.
Justice D. H. Layh ruled in his July 20 written decision that even though Zapshalla’s delay was inordinate and her reasons for delay don’t meet the mark to be excused, in the interest of justice, her claim shouldn’t be struck.
“The defendants’ reputations are not prejudiced, their livelihoods are not impacted by the delay, and they cannot complain about the witnesses’ loss of memory,” said Justice Layh.
"Ms. Zapshalla was the sole witness to the accident," said Justice Layh. "The court takes judicial notice that when a lift is summoned, the lift door would not normally open unless the floor of the elevator is present. Whether an installer or the designer of the lift, the mechanics of a door mechanism are not particularly dependent upon any witness’s memory. The defendants are corporations in the business of designing and installing lifts. Ms. Zapshalla’s claim is not about an interaction between individuals where memories are significant. This action is about an alleged mechanical failure.
“Lastly, the defendants have not availed themselves of any proceedings to formally or informally advance the litigation.”
Justice Layh pointed out that Honeywell didn’t serve their statement of defence until 22 months after Zapshalla served her statement of claim. Also notable, he said, is the fact that Ram’s counsel didn’t respond to lawyer Wayne Rusnak’s correspondence from May 2022 when he re-stated that his client’s medical records had been provided more than a year previously.
Judge Layh ruled that court costs for the application to dismiss the lawsuit were to be paid by Ram Manufacturing Ltd. and Honeywell Limited.
Story clarified to say lift.
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