Indexed as:

Oleynik v. Len-Joe Holdings Ltd.

Between

Jeffrey Oleynik, Plaintiff, and

Len-Joe Holdings Limited, carrying on business under the name

and style of the Riviera Motor Hotel, Albert C. Mady, Giuseppe

Gervasi, Giuseppe Tartaro and Leonardo Fazio, Defendants

[1988] O.J. No. 505

Action No. 9676/84

 Supreme Court of Ontario - High Court of Justice

 Non-Jury Sittings - Windsor, Ontario

O'Leary J.

March 30, 1988

Police -- Crowd disturbance -- Grabbing karate expert from rear -- Elbow smashed -- Action dismissed -- $65,000 non-pecuniary damages.

The 29-year-old police officer suffered a smashed elbow as a result of a fight at a hotel. He claimed against the man who threw him, the hotel and the owners of the hotel. The incident started in the parking lot of the hotel at closing time. A man had smashed in a window and was kicking at a door. One of the owners of the hotel tried to restrain him when a crowd formed. Another owner came onto the scene with the bouncer, a highly skilled karate expert. The one owner went to the assistance of the other owner and the bouncer tried to move the crowd away. The two policemen arrived. One policeman went directly to the fighting men. The crowd knocked them down. For some unexplained reason the plaintiff went for the bouncer. He grabbed him from the rear and the bouncer, not knowing who had grabbed him, threw the plaintiff to the ground. The plaintiff suffered a badly smashed elbow. Among other things, the plaintiff argued that the defendants were strictly liable because the bouncer, as a result of his skills, was dangerous to those who might come into contact with him.

HELD: The action was dismissed. The owners were entitled to try to stop the man who was kicking the door and damaging their property. They used no more force than was necessary to hold the man until the police arrived. The bouncer did no more than try to settle the people down and have them go home. He was entitled to assist the owner. When the bouncer was attacked from behind by the plaintiff, he acted instinctively but in any event only in a fashion to get his attacker off his back. There was no evidence that the bouncer could have dislodged the plaintiff in some fashion less likely to injure him. Further, there was no merit to the argument that the defendants were strictly liable. There was no evidence that one who is an expert in karate is more likely to injure persons who must be physically subdued than would a person not so skilled. In addition to an open reduction, the plaintiff underwent a number of procedures under general anaesthetic to treat his elbow. He underwent three manipulations to break adhesions, removal of a plate and six screws, epicondylectomy and bone grafting, insertion of washers and screws, removal of washers and screws and physiotherapy. He was left with an elbow which was arthritic, painful and severely limited in both extension and flexion. Since the accident he was only able to do light police work. Non-pecuniary damages were assessed at $65,000. Medical expenses were $12,762.

R.G. Colautti and P.K. Hrastovek, for the Plaintiff.

R. Istl, for the Defendants, Len-Joe, Gervasi, Tartaro and Fazio.

L.M. Belowus, for the Defendant, Mady.

O'LEARY J.:-- The plaintiff Jeffrey Oleynik is a thirty-seven year old police officer. He was injured on November 7, 1980 on the parking lot of the Riviera Motor Hotel. He and Constable Holden had been patrolling in a police cruiser when at about 1:10 a.m. on the morning of November 7, 1980 the police radio dispatcher put out a call for all available units to attend at the Riviera Hotel because of a fight involving the use of knives taking place in hotel unit No. 3. They went immediately to the hotel, arriving on the hotel parking lot with their red roof light flashing and stopped in front of hotel unit No. 3. The roof light on the top of the cruiser was then switched off.

I must now recount what had occurred before the arrival of the two police officers:

The premises of the Riviera Motor Hotel is made up of a main building which houses the facilities where refreshments are served, a building about 50 feet to the easterly of the main building and extending further southerly than the main building, in which building is located the hotel rooms or units, and a parking lot that is common to both buildings.

On evidence that is somewhat conflicting I find that the following occurred:

The defendant Giuseppe Gervasi who was a shareholder and officer of the defendant Len-Joe Holdings Limited which owns the Riviera Motor Hotel, decided on the evening of November 6, 1980 to visit some of the taverns which were his competition to check out their decor and entertainment. He took with him Wally Pastoreus and the defendant Albert Mady. Mr. Mady held at the time a second-degree black belt in karate and had qualified to hold a third-degree black belt. He was a highly skilled karate expert. While he was a relatively small man, five feet five and one half inches tall and weighing one hundred and forty pounds, he was obviously very able to defend himself.

Mr. Mady was twenty-two years of age at the time and had worked as a bouncer at the Riviera Hotel for a considerable period in 1978 and 1979. It appears he last worked at the hotel on July 17th of 1980. He continued to visit the hotel, however, and was a friend of its owners. If while at the hotel the need arose to assist the management in keeping order he lent them such assistance.

The inspection tour arranged by Mr. Gervasi took the three of them (Gervasi, Postoreus and Mady) to three or four hotels in Mr. Pastoreus' automobile. They left the Riviera Hotel shortly after 9:00 p.m. on November 6, 1980 and returned shortly after 1:00 a.m. on the morning of November 7, 1980. On returning Mr. Pastoreus parked his car on the east side of the parking lot adjacent to the motel units building and about midway between the north and south ends of that building.

On entering the hotel parking lot and even before the car came to a stop Mr. Gervasi noticed a crown of persons on the parking lot between the hotel and the motel building. He realized that some kind of a commotion was taking place and that his fellow shareholder, officer and manager, the defendant Leonardo Fazio was in the middle of the crowd. Asking for Mr. Mady and Mr. Pastoreus to follow and assist him, Mr. Gervasi, intent on finding out what the problem was and protecting Mr. Fazio and the hotel property, jumped out of the car, followed at least by Mady. The commotion was centred about motel unit No. 3, and Mr. Gervasi and Mr. Mady ran to that area.

When Gervasi and Mady arrived at unit No. 3 one Kevin Avery a man not then known to either Gervasi or Mady, was in the process of smashing the glass in the front door of unit No. 3 with a pipe he was wielding in his hands. In breaking the glass door he cut his hand and thereafter bled rather profusely from the cut. He then began swinging the pipe wildly, apparently to keep all at a distance from him. Mr. Mady approached him, told him to put the pipe down and he did so. Mr. Avery then entered unit No. 3, picked up a lamp and threw it against the wall and then began kicking the bathroom door. Mr. Gervasi entered unit No. 3, took hold of Mr. Avery and ushered him outside.

Someone told Mr. Gervasi the police had been called and Mr. Gervasi told Mr. Avery, who was commencing to walk away, that he was going to charge him with causing damage to his property. Mr. Avery replied by swearing at Mr. Gervasi and then taking a swing at him. Mr. Gervasi decided he was going to keep Mr. Avery there until the police arrived and to use force in doing so. Because Mr. Avery wanted to leave and Mr. Gervasi was intent on keeping him there until the police arrived a struggle ensued between the two of them.

In the meantime, it being closing time, more people were leaving the hotel and Mady and Pastoreus busied themselves in asking those customers who were leaving to go to their cars and leave the premises. Mady, because of the cursing and threatening remarks made by some in the crowd, directed at him and the hotel employees and some patrons that had come to lend support to the hotel management group, felt there was some danger of violence from some in the crowd. The management group retreated southerly and westerly as the crowd came forward, moving in that southerly and westerly direction so that the crowd could pass to their cars by going to the easterly of them. The hostile group, after appearing about to disburse, changed direction and began to come back again in the direction of the management group. Mady felt there might be a physical attack by the crowd. He was wearing shoes with rather high heels and he kicked those off feeling if he had to defend himself he would have better balance in his stocking feet than in those shoes. While it is of no consequence, he was wearing painter pants that evening, rolled up to the ankles as was the then current style.

The hostile crowd moved northerly and westerly and the management group retreated likewise in that direction. Mady kept to the north and west of the management group, asking patrons who were leaving the hotel to go to their cars and depart. Mady at this point saw Gervasi and Avery scuffling.

It was at this point that the police cruiser with Constables Holden and Oleynik in it arrived on the hotel parking lot.

On arrival at the parking lot the officers noted a group of twenty to forty men and women some sixty feet or so from where they had parked their cruiser. The crowd appeared to be watching Gervasi and Avery fighting. Constable Holden saw Gervasi and Avery exchanging swings at each other and then he saw Avery go down and Gervasi kicking him. Both officers were concerned that Avery would be injured and they immediately jumped out of the cruiser and ran towards the crowd. Neither Gervasi nor Mady saw the cruiser enter the parking lot nor the officers running towards the group that they were in.

Constable Holden ran directly to Gervasi and grabbed him from behind. Three or four unknown persons in the crowd, and for an unknown reason, jumped on the backs of Holden and Gervasi, knocking them to the ground and thereafter administered three or four kicks to Constable Holden and then the crowd backed off. Shortly after being knocked to the ground Gervasi realized it was a police officer that had grabbed him from behind. He tried to convince the police officer he had attacked the wrong person.

In the meantime as Constable Oleynik had been approaching the group he noted that Constable Holden who was ten feet ahead of him, had been knocked down and his intention changed from stopping the fighting to saving his partner. He was afraid the crowd would close in on Constable Holden and he wanted to give him room to get up. For some reason that he cannot explain he approached Mr. Mady who was standing just to the north/west of the crown, approaching him from the rear, hit him heavily on the low back and wrapped his right arm around Mr. Mady's throat with great force. Mady, thinking that someone from the hostile crowd had attacked him, instinctively grabbed Constable Oleynik by his right arm and pulled him over his right shoulder causing Constable Oleynik to land on his right elbow badly smashing it. Constable Holden got up when the crowd backed off, only to see Constable Oleynik on his back and obviously injured. He somehow knew that Mr. Mady was the one that had injured him and he tackled Mr. Mady, knocking him to the ground. Mr. Mady immediately told him he was the bouncer. Mr. Mady thereafter twice apologized to Constable Oleynik explaining that he did not know he had been grabbed by a police officer.

I am unable to see how any of the defendants are responsible for the injury suffered by Constable Oleynik. There is no explanation in the evidence as to why Mr. Avery smashed the glass door or otherwise acted as he did. Mr. Gervasi was entitled to prevent further damage to the hotel premises and to arrest Mr. Avery and hold him until the police arrived. He was entitled to seek the assistance of Mr. Mady in protecting his property and preventing a further disturbance. I conclude on the evidence that he used no more force than necessary to hold Mr. Avery until the police arrived. While he apparently cut his hand when he broke the glass door but he even declined medical assistance for that injury when the police offered him the opportunity of going to the hospital for attention. There is no evidence that Avery suffered any other injury except the cut to his hand.

I am further satisfied the police themselves realized that Mr. Gervasi had done no more than he was entitled to and he was not charged with any offence arising out of the incident.

So far as Mr. Mady is concerned he never at any time did more than try to settle people down and have them go home. He was entitled to assist Mr. Gervasi to try and prevent things becoming more explosive. Certainly he was warranted in staying around to give assistance to Mr. Gervasi and the other hotel employees should they be attacked.

It is ironic that Mr. Gervasi and Mr. Mady, the two persons who had done the most to prevent further damage to property and further disturbance and who would have been the most anxious for the police to arrive to bring the incident to an end, were the two persons the two officers attacked.

When Mr. Mady was attacked from behind by Constable Oleynik he acted instinctively but in any event only in a fashion to get his attacker off his back. He did not make any attempt to injure him. It was sheer misfortune that Constable Oleynik landed on his elbow. There is no evidence that Mr. Mady could have dislodged him in some fashion less likely to injure him.

Quite apart from the specific conduct of Mr. Gervasi and Mr. Mady on the morning of November 7, 1980, which I conclude rather than being wrongful was in fact commendable, there is no evidence that the hotel was not being properly operated so as to avoid undue risk of incidents that would require police involvement. There is no evidence that there was any lack of control over those who frequented the hotel. Further, since the cause of the incident is unknown there could be no proven connection between the state of policing or control over patrons and the incident which occurred. It is simple speculation that had there been more bouncers on duty or an off-duty police officer hired to exert control that the incident (that is to say Mr. Avery and perhaps some group of persons becoming violent) would not have happened.

In any event I cannot, on the evidence, conclude that for the reasonable protection of patrons or to avoid incidents that might involve the police, it was incumbent on the Riviera Hotel to have an off-duty police officer on duty at all times when the hotel was open.

While it is perhaps academic since I have found that the defendants are not liable for the injury suffered by Constable Oleynik, I will address briefly the question as to contributory negligence on the part of Constable Oleynik.

It might well have been more prudent if the police officers had kept the roof light of the cruiser flashing after they arrived in the parking lot and it might well have had a salutary effect on the crowd if the siren had been used a few times at that point. It might also be said that it would have been better if the officers, on approaching the crowd, had shouted out that they were the police, that the fighting was to stop and that the crowd was to back off, rather than simply attacking two of the persons in the crowd.

We must not forget, however, that the luxury of weighing the proper course of action that we have today did not exist when the officers arrived on the parking lot. They reacted instinctively to an incident as it appeared to them and I think it would be unfair and improper to now suggest that the officers were negligent in their conduct. They were not simply volunteers. They were under an obligation to prevent breaches of the peace and they acted quickly to do so. I cannot say that Constable Oleynik was negligent in approaching and grabbing hold of Mr. Mady from the rear.

While I have concluded that the defendants are not responsible I must still assess damages.

When Constable Oleynik, who was then twenty-nine years of age, was thrown by Mr. Mady he apparently landed on his right elbow, quite literally smashing it. The numerous fractures of the joint were repaired with screws and plate in an open reduction under general anesthetic and the right arm was placed in a cast. In spite of the open reduction and the following procedures performed under general anesthetic: January 6, 1981, manipulation to break adhesions; January 14, 1981, manipulation to break adhesions; March 17, 1981, manipulation to break adhesions; April 29, 1981, removal of plate and six screws, epicondylectomy and bone grafting to an unhealed fracture, insertion of washers and screws and application of cast; May 31, 1985, removal of washers and screws, scar tissue,excess bone growth and the radial head and application of cast; in spite of physiotherapy that extended over many years; in spite of the continued but spasmodic use of an apparatus to strengthen the arm, Constable Oleynik has been left with a right elbow that is arthritic, painful and severely limited in both extension and flexion; with an elbow that is so painful and limited in movement that in July of 1986 his doctor directed that he be restricted to light police work only. He has continued with light police duties since then.

Activities such as shovelling snow, playing racquet ball and golf, are followed by so much pain and are performed so unskillfully as to make the effort not worthwhile. Because of severe and even now substantial pain, Constable Oleynik has been required to take drugs for pain to such an extent as to seriously concern him about addiction. Being left with a permanently disabled arm has caused him depression and at least for a period a feeling that he was a most unlucky man.

Constable Oleynik returned to light duties as a police officer on July 25, 1981 and to regular police duty, that is to say, back to his former cruiser work, in January, 1982. There were, of course, subsequent interruptions of his work because of the treatment following January 1982 that I have already described.

As of July 3, 1986 he lacked forty-five degrees of extension and had only one hundred and ten degrees of flexion in the elbow. He had crepitation in the elbow and some ulnar nerve entrapment causing tingling and numbness in two of his fingers and marked arthritis in the elbow. Those problems continue to exist.

I assess Constable Oleynik's non-pecuniary general damages at $65,000.

Because of the provisions of the Worker's Compensation Act, the City of Windsor has been required to pay Constable Oleynik a pension. In fact, as a result of the particular collective agreement which governs Constable Oleynik's employment, he has received, since November 7, 1980, his full pay and he has also received the pension in question.

The City of Windsor claims that it is entitled to collect from the defendants the pension that it has paid, as it was required to do by the Worker's Compensation Act. I simply point out that subsection iv of Section 8 of the Worker's Compensation Act provides for the employer to be subrogated to the rights of the employee. In other words the City cannot have a greater right of recovery against the defendants than does Constable Oleynik. Constable Oleynik can only claim at the most for one hundred percent of wage loss and it is quite irrelevant that someone by Statute had to pay him in addition to that a pension. Such pension is not a claim that can be exerted by Constable Oleynik in addition to his wage loss, if any, and so it is not an item that can be the subject matter of subrogation. I therefore conclude that the City is not entitled to recover the pension that it has paid.

It was argued on behalf of Constable Oleynik that the Riviera Hotel and those who operated it should be held strictly liable for any injury that resulted because they employed or used Mr. Mady in assisting them to keep control over patrons or any one who might be causing a disturbance. The argument is that because Mr. Mady is so highly skilled in karate he was a danger to any one who might become physically involved with him as a result of his role as a person attempting to keep control. By way of a slight variation of the argument in regard to strict liability, it was also argued that it was negligence on the part of the operators of the hotel to use Mr. Mady in policing the conduct of the hotel s patrons based, of course, on the same suggestion that because of his skills he was dangerous to those who might come into contact with him.

There is not, in the evidence, any basis for this argument. There simply is no evidence that one who is expert in karate is more likely to injure persons who must be physically subdued or persons who become engaged in a scuffle with the expert than would a person not so skilled. Indeed it may well be that a person trained in karate is better able to subdue unruly patrons without injuring them than one not so trained. Further, I am convinced that there is nothing in the evidence to suggest that Mr. Mady is prone to let his emotions run away with him. Rather, I conclude from the evidence he is quite cool-headed and exhibited that characteristic on the morning of November 7, 1980.

While I think it is already on the record, I repeat again that there is a question of wage payments by the City of Windsor for periods when Constable Oleynik was unable to work or was only able to work part-time, which has to be sorted out. I understand it to be conceded that the City is entitled to an assessment of damages in the amount of wages paid by them for services which in effect Constable Oleynik could not render. Counsel seem to be of the view that with a little effort they will be able to settle the amount but in case they do not it is agreed that there should be a reference to the local master to fix the amount of wages paid for services that Constable Oleynik could not render because of his incapacity as a result of the injury he suffered.

By agreement I assess as damages for medical expenses the amount of $12,762.52.

In my reasons I spoke of assessing non-pecuniary general damages at $65,000. In fact in this case there is no evidence that there will be future pecuniary loss as a result of the injury and accordingly I am actually assessing general damages and not just non-pecuniary general damages at $65,000.

For reasons given the action is dismissed.

General damages are assessed at $65,000. I assess medical expenses at $12,762.52. If the parties fail to agree on the amount of salary the City of Windsor paid to Constable Oleynik while he was unable to work because of his injuries then the matter of assessing that amount is referred to the local master at Windsor. I award party and party costs to the defendants.

CERTIFIED

 ANDREENA M. BRANT, C.S.R.

 OFFICIAL REPORTER, S.C.O.