Liability: icy walkways

Liability was the last thing I was thinking about when I took our dog, Scout, an old golden retriever, out for his morning walk a week ago. Then, I slipped twice on ice. It had snowed the night before, and a thin layer of fresh snow covered the ice generated during our last warm spell. Fortunately, I caught my balance before falling. But it got me thinking about liability. I live in a condo complex, and the lane does not belong to the city. It’s on the Condo Corporation lot. The Condo Corp neighbours have the right of way down our lane to access their garages. It acts as their back lane. I realized immediately that Condo Corp (and therefore us, as condo owners) could be liable if someone slipped and fell, injuring themselves. This was a real possibility because the entire lane was covered in ice. While the lane is private, the residents of at least five homes access it regularly, not to mention the condo owners and their guests.

Negligence

I was worried about liability (I know, I need a life) because, in law, there’s a relatively old concept of being responsible for damages to your neighbour if your negligence caused the damage. I’ll give you an example. If someone drank a bottle of pop, and after drinking the pop, found a dead snail in the bottle and later became ill, the pop manufacturer could be found liable. The pop manufacturer owes a duty to its customers to ensure the drinks are safe. If the manufacturer did not implement proper quality control, then the manufacturer would likely be liable – this was actually the first case where the courts established this concept of negligence. You can read about the snail in the ginger beer in Donoghue v Stevenson here.

Negligence Established In Law

Since that fateful in 1932, Canadian provinces have passed laws enshrining that concept into legislation. In Manitoba, the law covering this concept is the Occupier’s Liability Act. The act states:

Occupiers’ Duty

3(1) An occupier of premises owes a duty to persons entering on the premises and to any person, whether on or off the premises, whose property is on the premises, to take such care as, in all circumstances of the case, is reasonable to see that the person or property, as the case may be, will be reasonably safe while on the premises.

In plain English, this means that someone who occupies a house, apartment, building, or lot, owes anyone there a duty to keep the person reasonably safe. It also applies to property left in or on your premises. The term occupies doesn’t mean own. This duty applies to you if you rent or lease. It’s a question of control, not ownership.

Occupiers’ Duties

So, if you own a home or condo, you owe a duty to anyone on your premises, which includes the inside of your house, the walkway, the driveway, and the yard. So in my case, indirectly, I owe a duty to anyone using our lane. If you own a business, you owe a duty to anyone in your parking lot, store, plant, or office. Now, you should understand just because you owe a duty, doesn’t mean you are automatically responsible for everything that occurs on your premises. The law establishes the duty only. To be found responsible, you must have been negligent. What does negligence look like? This is a very broad topic, and it’s impossible to list all the actions or inactions that courts have found to be negligent. Some examples are tampering with your smoke detectors, failing to remove debris or cover holes, and failure to properly clear snow and ice.

Ice Can Be Dangerous

In this post, I want to focus on snow and ice because this liability is very current, but these principles apply to various situations. First, courts don’t expect perfection. If we all had to run outside the minute it snowed to clear our driveway, we would be outside for hours on end. Think about the most recent blizzard in southwestern Manitoba. It lasted 36 hours.

The “Reasonable Person” Standard

Courts will hold you to the standard of “a reasonable person” acting in similar circumstances. A “reasonable person” would normally shovel their drive within a reasonable amount of time, following a snowfall. That same “reasonable person” would also salt patches of ice regularly. If these circumstances applied to you, a court would likely find your efforts were reasonable. Similarly, if you hire a snow clearing service and they perform their duties within a reasonable amount of time, a court will also likely find in your favour. If you follow up with them when they are late, that evidence will work in your favour. You are probably wondering why and how you can be held liable seemingly so easily when we rarely hear about these types of stories in the news. In fact, these types of cases occur quite frequently. We don’t hear about them because so few make it to court.

Role of Insurance

Usually, insurance companies settle these “disputes” out of court. Your home insurance normally covers these types of risks under third-party liability coverage. So if you’re insurance covers you, you must be wondering how the title of the article applies – how can icy walkway lawsuits be expensive? The costs can be measured in different ways. First, if your insurance company must either defend or pay out a claim, your insurance premiums will surely rise. Secondly, in the unlikely event the matter goes to court, lawyers for the injured party will call you to testify. “Occupiers” will have to provide evidence to the court to determine whether negligence was at play. If you are a business owner, that means employees may have to testify. Appearing in court can be quite stressful. Testifying takes an emotional toll, especially if the other party was severely injured. Negligence is not a willful act. Even if a court finds that your efforts were reasonable, you may nonetheless experience feelings of guilt. In addition to stress, you will have to take time off work to prepare for court and attend court. Finally, cases don’t usually move forward unless someone was injured or died. The emotional cost to the injured party is immeasurable. The court will assess damages in monetary terms, but the injured party’s practical reality will have been seriously affected. 

Disclaimer – Legalese

This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor-client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact Philippe Richer at richerp@tlrlaw.ca, or 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).