Take care! You can be sued if someone is injured on your property.

Homeowners have a responsibility to keep visitors safe and can be sued if someone is hurt on their property. Even family members and friends have been known to sue when they experienced injuries that were alleged to be the fault of their host.

Our home is our place of refuge and relaxation but we often forget that homes can also be a source of injury. This applies to our primary residence, cottage or any other premises we own or rent. Guests and visitors may be injured in a variety of ways for which we could potentially be held responsible, such as by tripping an’d falling, drowning in our pool or through injuries that resulted when someone became inebriated at our house. Ontario courts are more aggressive in assigning negligence to commercial establishments than to private owners or renters when someone is injured on their premises; however, homeowners can also be found negligent if they failed to take reasonable care to keep their visitors safe.

Ontario’s Occupiers’ Liability Act governs our liability if someone is injured on our property. An ‘occupier’ can be an owner or tenant or anyone who has responsibility for, or control over a property and whatever activities are carried out there. Businesses, municipalities, industries and private citizens may all be ‘occupiers’. The Act asserts that occupiers owe a duty of care to ensure that any person entering their property is kept reasonably safe while on the premises.

Our duty to keep visitors safe extends to many situations that may occur in our home.

• We need to ensure that there are no structural problems, debris or unsafe flooring surfaces that may cause someone to fall and suffer injury, but which a prudent homeowner should reasonably have been expected to fix, clean, or warn visitors of.
• As homeowners, we need to abide by any municipal bylaws that pertain to potential drowning hazards. Most municipalities have bylaws governing fences around pools. A homeowner who does not adhere to the relevant bylaws or whose action or inaction was otherwise a factor in a drowning on their property, may be held liable for injury.
• When we are entertaining, we need to take reasonable care to ensure we have not contributed to an unsafe action, such as injuries that result because we provided alcohol or drugs to someone who was subsequently injured or caused injury to another person.

This obligation to keep our visitors safe has significant implications when we do any entertaining on our property, or indeed, when anyone is invited for a visit. Alcohol can easily play a role in accidents that would not otherwise have occurred. If hosts provide alcohol to a guest who subsequently drowns or is catastrophically injured in their pool or from falling down stairs, the homeowner can be sued by the guest who was injured. We are unwise when we assume that a guest or ‘friend’ would never sue us, because most people who experience severe injury will pursue a resolution that is in their best interests.

Slip and fall trial of Waldick v Malcolm: a man sues sibling for damages

A man slipped and fell on his sister’s icy driveway after coming to her farmhouse for a free haircut. The man, Mr. Waldick, suffered a fractured skull as a result of his fall. The landmark case, Waldick v Malcolm (1991) was tried in the Supreme Court of Canada and was an appeal of an earlier judgement that found his sister and brother-in-law, the Malcolms, liable for Mr. Waldick’s personal injuries. The issue in this case was whether the Malcolms met the statutory duty of care prescribed by the Occupiers’ Liability Act, which states that an occupier owes a duty of care not to create a danger or act with reckless disregard. This duty of care does not apply, however, to risks that are willingly assumed by a person entering the premises. The court considered two key factors in determining fault on the part of the Malcolms: whether they breached their duty of care and whether the accident was foreseeable.

The Malcolms had done nothing about the slippery condition of their driveway; there was no attempt to salt, sand or clear away ice. The Malcolms argued that they shovelled their walkway and porch but few people in their rural area took any measures to mitigate icy conditions on their driveways and it was unreasonable to be expected to do so. This ‘local custom’ was supported only by Mrs. Malcolm’s testimony. In any case, the court stated that customary practices that are unsafe or unreasonable do not remove the duty of care owed under the Act. The judge concluded that because the ice storm occurred four days prior to the accident and was followed by freezing temperatures, the icy condition of the driveway was expected and known. Since the Malcolms did nothing to resolve this dangerous circumstance, they failed to meet the standard of care under the Act.

The court acknowledged that it would be unfair to have unreasonable expectations for the rural and northern residents of Ontario, where there are more extreme winter conditions but usage is lighter than urban areas, but at the same time, it would be inappropriate to fragment the duty of occupiers under the Act by imposing different judge-made rules for premises in rural or urban settings.

Another issue at court was whether Mr. Waldick willingly assumed the risks at the premises. Mr. Waldick admitted that he was aware that the laneway was slippery and took care walking to and from his car. The Malcolms argued that Mr. Waldick was not wearing a winter coat when he was returning to his car to retrieve cigarettes and subsequently fell, which signifies that Mr. Waldick must have been hurrying in the cold weather and was thus not being careful at the time of the accident. The judge rejected this argument and asserted that Mr. Waldick’s knowledge of the conditions he was facing did not mean he willingly assumed the risk of falling. At trial, it was said that an injured person will only rarely “genuinely consent to accept the risk of the defendant’s negligence”.

In the final judgement, the Supreme Court found that Mr. Waldick was not contributorily negligent and dismissed the Malcolms’ appeal.

If you were injured in a slip, trip and fall accident, you may be found to be negligent or contributorily negligent if your behaviour contributed to the circumstances of your accident. The most common reasons why a person might be held responsible or contributorily negligent for their own injuries are:

• wearing inappropriate footwear (particularly during icy conditions)
• not paying attention to where they are walking
• under the influence of alcohol or drugs
• behaving in an extremely reckless and unpredictable manner

Obtaining compensation for injuries caused by homeowner negligence

If you were seriously injured on a property due to the negligence of the owner, you are entitled to compensation for the financial losses and pain and suffering you suffered as a result of your injuries. The personal injury lawyers affiliated with the prestigious Injury Lawyers of Ontario (ILO) law group are experts in negligence litigation including occupiers’ liability, insurance law and accident disability claims. In a free consultation, we can assess whether you have a good case for compensation and the potential next steps that need to be taken to win your case.