|Posted by Injury Lawyers of Ontario on September 01, 2016
Under the Occupiers’ Liability Act, a homeowner is responsible for taking reasonable care so that persons entering their premises are safe while there. These duties apply with respect to the condition, activities, and conduct of third parties on the premises. The occupier has a responsibility to access any safety hazards that might be present and to warn persons of them or discourage persons from actions that may lead to injury. That being said, while a homeowner is reasonably responsible for the safety of their visitors, visitors themselves are also expected to take care and use common sense while on another person’s property.
Definition of "Occupier"
According to Ontario law, an occupier is a person who is in physical control of the premises or has the responsibility for the premises. An occupier can be the owner, caretaker, tenants or any combination of these. In any injury associated with premises liability, the injured person should seek the advice of an experienced and knowledgeable personal injury lawyer to determine who may be held liable and ensure that appropriate evidence is gathered as soon as possible to support your case. Video or photographic evidence of the hazard is often very important in identifying the cause of a slip/trip and fall accident, and cell phones have proven to be very useful in creating an immediate picture of the source of injury.
Recent Homeowner Liability Court Case
In a 2016 trial, Irvine v. Seipt, a visitor to an acquaintance’s home fell and fractured her left wrist, when she attempted to step up onto the homeowner’s porch. It was suggested that the injured woman’s hurry to get onto the porch resulted from her fear of dogs, after she perceived the homeowner’s son playing ball with their two dogs, a Labrador retriever and bull terrier/pit bull cross. With respect to the plaintiff’s injury, the defendant homeowner was accused of negligence for failing to comply with the Occupiers’ Liability Act.
The plaintiff claimed that once she arrived at the premises and attempted to enter the home through the front door, the plaintiff and her family were directed to the rear of the home where they encountered the sudden presence of two unleashed dogs, one a Pitbull terrier. Fearing the dog, the plaintiff allegedly attempted to flee to the safety of an elevated backyard porch that was under construction. When the plaintiff attempted to climb the stairs to the porch, she allegedly fell backward due to the uneven height of the stairs. The plaintiff testified that no effort was made to warn visitors of this safety hazard.
The judge in Irvine determined that the uneven stairs created a safety hazard for the guests present on the property that day. As per the testimony of a civil engineer, the height of the step from the yard to the porch was about twice the recommended height in the Building Code (i.e. 7 inches). Whether or not the woman’s fear of dogs caused her to step onto the porch did not have an effect on the judge’s ruling. Although the defendant disagreed that the injured woman was actually invited to the home, the judge concluded that the homeowners were nevertheless in violation of the Occupiers’ Liability Act.
The judge went on to rule that the plaintiff also shared in the responsibility to exercise reasonable care for her own safety by noticing the change in stair depth and adjusting her actions accordingly. As a result, the plaintiff was found 35 percent contributorily liable, and the homeowner was found 65 percent liable for the damages.
The defendant homeowner was also determined to be in violation of the Dog Owner's Liability Act which requires the muzzling and restraint of their pet dog, a Pitbull Terrier. The Act was amended in 2005 to give special consideration to Pitbulls due to publicity that the breed has been responsible for several vicious attacks on individuals and accusations that the dogs had been bred specifically for illegal violent dogfighting. According to the law, Pitbull Terriers are required to be equipped with a muzzle and secured by a leash unless within an enclosed property occupied by the owner. This is a requirement despite the fact that the defendant's dog had a history of good behaviour.
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