Unsafe Premises – “Slip and Falls”

Unsafe Premise Injury lawyer

Whether it be a wet un-mopped floor at a grocery store or snow filled condo parking lot, a slip and fall can result in serious orthopedic injuries. Common injuries include fractured hips, wrists and ankles. Torn rotor cuffs and concussions are also usually found.

The common law duty of care applies in relation to:

(a) the condition of the premises,

(b) activities on the premises, and

(c) the conduct of third parties on the premises.

As to the duty imposed by section 5 of the Occupier’s Liability Act (OLA), the Court of Appeal stated in Preston v Canadian Legion of the British Empire Service League, Kingsway Branch No. 175 and Edmonton (City) (1981), 1981 ABCA 105 29 AR 532 (CA) at 536:

THE LAW OF OCCUPIERS’ LIABILITY

The Occupiers’ Liability Act, R.S.A. 2000, c. O-4 (OLA) applies to slip and falls.

Section 5 of the act reads as follows:

Duty of care to visitors

An occupier of premises owes a duty to every visitor on the occupier's premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there.

The statute now imposes an affirmative duty upon occupiers to take reasonable care for the safety of people who are permitted on the premises. This change is most marked because it does away with the old common law position that an occupier was only liable for unusual dangers of which he was aware or ought to have been aware. Under the old law the occupier could escape liability by giving notice. Now, the occupier has to make the premises reasonably safe. That does not absolve the visitor of his duty to take reasonable care but does place an affirmative duty on each and every occupier to make the premises reasonably safe.

The injured party must show that the property owner was in breach of the duty owed pursuant to the OLA and that her injuries were caused by the negligence of the Defendants as the occupier. The burden is on the Plaintiffs to establish the case against the Defendants on a balance of probabilities.

Once liability is established, the burden of proof shifts to the Defendants to show they exercised the degree of reasonable care called for by the foreseeable risk: Anderson v Canada Safeway Ltd, 2004 ABCA 239 at para 

1. Was the risk reasonably foreseeable?

To determine negligence, reasonable foreseeability must first be established. Where the particular risk of injury to a visitor is reasonably foreseeable, the occupier’s duty to take reasonable care to prevent such injury is established; according to the ordinary common law standard in tort law: Wood v Ward, 2009 ABCA 325 at para 6.

The Alberta Court of Appeal affirmed in Lorenz v Ed-Mon Developments Ltd (1991), 1991 ABCA 82 , 118 AR 201 (CA), in order to determine whether an occupier has breached the duty of care owed under the OLA, the correct question to ask is whether the occupier “could reasonably foresee a risk to visitors who exercise ordinary diligence. If the answer is yes, the occupier is negligent even if the plaintiff failed to exercise ordinary diligence”: at para 3.

Interpreting this statement from Lorenz, the Court of Appeal in Wood found:

The passage must, however, be read in context, and it merely says that negligence by the plaintiff and negligence by the defendant can coexist. Further, the result in Lorenz shows that the duty extends to contributorily negligent plaintiffs, not just those “who exercise ordinary diligence”.

If the jersey barrier were concealed or hidden by the snow, then, akin to other cases regarding concealed dangers, that slipping on the jersey barrier would be a reasonably foreseeable risk:

• DeWaard at para 15 (young man at a laser-tag course fell through a thin particle board partially or totally covering a hole in the floor);
• Singer (Litigation Guardian of) v Hamilton (City), 2009 ONCA 559 (at paras 12-24, 30, 251 OAC 201 (78 year old woman fell into a four foot deep trench in a sidewalk at an unmarked construction zone, which was obstructed from view by a piece of equipment);
• Mann (Next Friend of) v Calgary (City) (1995), 1995 9027 (AB QB), 167 AR 133, 27 Alta LR (3d) 405 at para 37 (child tripped on a reddish-pinkish two foot tall pedestal encroaching on a reddish-brick walkway);
• Poluk v Edmonton (City) (1996), 1996 10537 (AB QB), 191 AR 301, 46 Alta LR (3d) 146 at para 15 (man ran into a black iron post in unlit parking lot at night);
• Thomson v Newfoundland (1994), 1994 I 9776 (NL CA), 119 Nfld & PEIR 217 (CA), 48 ACWS (3d) 225 at paras 2-6 (man slipped on a building staircase that had no handrails, on a step that had a slight depression in it, where water would accumulate and freeze);
• Foley v Imperial Oil Ltd, 2011 BCCA 262 , 19 BCLR (5th) 289 at paras 23, 36 (man fell on a patch of ice hidden beneath water outside of a carwash).

It is important to note that an occupier does not owe a duty to prevent all harm to visitors, only to take care that is reasonable in the circumstances to see that the visitor is reasonably safe.

An occupier is not an insurer of a visitor’s safety: Perrett v. Port Moody (City), [1998] B.C.J. No. 622 (S.C.).

The act does not require a perfect maintenance system, only a reasonable one: Anderson v. Canadian Safeway Ltd., 2004 ABCA 239 at paras. 4-6. The act does not require “constant surveillance and instant response”: Beaman v. Canada Safeway Ltd. (1993), 1993 8928 (SK QB), 115 Sask. R. 100 (Q.B.) at para. 17, aff’d (1994), 1994 4552 (SK CA), 123 Sask. R. 244 (C.A.).

An occupier is not required to keep a parking lot free of ice and snow at all times as this would be unreasonable: Perrett v. Port Moody (City); Carstensen v. F.J.R. & Associates Real Estate Co. Ltd. and Haddon Road Investments Ltd. (1981), 29 A.R. 411 (Q.B.).

If an occupier takes reasonable care to ensure a visitor’s safety, and if despite that care a hazard develops and a visitor is injured, the occupier is not liable for that injury.

McQueen v Alberta, 2001 ABQB 220 ), aff’d 2002 ABCA 31 affirmed that where a danger is so obvious and apparent that anyone would be aware of it, there is no duty to warn.

While a lengthy safety record is a relevant consideration in determining whether an occupier did or did not breach its duty of …, it is not determinative of the issue of liability: Stynes v Victoria (City) (1990), 1990 946 (BC CA), 43 BCLR (2d) 118 (BCCA), 66 DLR (4th) 588.

In Chouhan v Canada Safeway Ltd, 2012 ABQB 7, 212 ACWS (3d) 595, the plaintiff slipped on ice on the sidewalk of the occupier supermarket. The Court noted at para 26 what the defendant occupier did to avoid liability and meet its obligations:

1. Canada Safeway hired an experienced and competent snow removal contractor;
2. The snow removal contract contained reasonable terms that required walks and storefronts to be cleared once a day prior to 8:00 a.m., whenever there was a skiff or more of snow present, and to place ice melt on icy areas. Additional snow clearing could be requested by Canada Safeway if required.
3. Canada Safeway staff monitored the contractor’s performance to ensure it was satisfactory.
4. Canada Safeway staff were responsible for inspecting snow conditions on the site periodically throughout the day and for requesting additional snow clearing during the day if needed.
5. While requiring snow removal to be completed by 7:45 a.m., rather than by 8:00 a.m., may have improved Canada Safeway's snow removal program, it was not a necessary requirement for a finding that its snow removal program was reasonable.

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