This article will look briefly at the law of “occupier’s liability”.
Imagine, if you will, Santa Claus coming down the chimney on Christmas Eve. He squeezes out through the bottom of the chimney, dusts himself off.
The Christmas song, “You Better Watch Out, You Better not Pout” is playing on the stereo. As he walks across the barely lit hardwood floor towards the Christmas tree, his foot lands on a toy car that the owner’s 5 year old son has left out in the middle of the room, causing Santa Claus’ foot to fly backwards. Santa lands on his sack with a loud crash. So much for that batch of toys.
Gathering himself up, Santa Claus spies a glass of milk and some cookies on the kitchen table. He hobbles towards the kitchen, but halfway there he falls forward off the unlit step between the living room and the kitchen floor. He pulls himself off the ground a second time, grabs the glass of milk, and enjoys the cookie. He hopes the milk has not spoiled before he gets to it.
Santa Claus is too stiff to make it back up the chimney, so he calls a taxi. He incurs a huge taxi and icebreaker bill in getting back to the North Pole.
Prior to the two-year limitation, Santa Claus sues the owner, the tenants and the cleaning company of the residence for personal injury and expenses.
The governing statute in Alberta is the Occupiers’ Liability Act, RSA 2000, cO-4. Briefly:
- The statute defines an “occupier” as a person who is in physical possession of premises or who has responsibility for, and control over, the condition of premises, the activities conducted on the premises and the persons allowed to enter those premises. There can be more than one occupier of the same premises.
- A visitor is defined as an entrant as of right, a person who is lawfully present on the premises by virtue of an express or implied contract, any person whose presence on the premises is lawful, or a person whose presence on the premises becomes unlawful after entering the premises and who is taking reasonable steps to leave the premises.
The statute provides that every 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. This is called the “duty of care”.
The duty of care applies to the condition of the premises, the activities on the premises and the conduct of third parties on the premises.
An occupier is not liable to a visitor in respect of a risk willingly accepted by the visitor.
A warning does not absolve an occupier from his or her duty of care to the visitor unless in all the circumstances the warning is enough to enable the visitor to be reasonably safe.
The liability of the occupier can be restricted or excluded by express agreement or express notice, provided reasonable steps were taken to bring this restriction to the attention of the visitor.
Other than child trespassers, an occupier does not owe duty of care to a trespasser unless the trespasser suffers injury or death that results from the occupier’s willful or reckless conduct.
Where an occupier knows or has reason to know that a child trespasser is probably on the premises, and that the premises create a danger of death or serious bodily harm to that child, the occupier owes a duty to that child to take such care as is reasonable in all the circumstances of the case to see that the child will be reasonably safe from that danger, bearing in mind the age of the child and the ability of the child to appreciate the danger compared to the burden of eliminating the danger or protecting the child from the danger.
Applying the law to our unfortunate Santa Claus, as Santa was lawfully on the premises (as indicated by the cookies and milk left on the table for him), Santa was a “visitor” rather than a trespasser, and was owed a duty of care by the occupiers of the home. The Christmas song playing softly in the background does not help the occupier as a “warning”, as it is not sufficient in the circumstances. However, as Santa Claus knew that there were children in the home, the occupiers would argue that Santa Claus should have known that young children would leave toys scattered across the floor, and that he should have taken more care when walking across the living room floor. As far as falling off the step, leaving an enticing plate of cookies and a glass of milk on the table, which would draw Santa’s gaze away from where he was walking, would work against the occupiers. The occupiers would hire the Grinch to defend them, and would claim contributory negligence on the part of Santa Claus, which would reduce Santa’s claim by the percentage that he was at fault relative to the occupiers on a comparative blameworthiness basis.
Although this is a far-fetched and light-hearted look at the law of occupier’s liability, we invite you to call one of our lawyers at (403)250-7100 to discuss whether you may have a claim or not for your slip and fall injury.
We would, at a minimum, suggest that:
- You take photographs of where the fall happened as soon as possible after it occurs;
- Look for and photograph what caused the fall;
- Photograph any visible injuries;
- Look for any video cameras in the area that may have recorded your fall;
- Preserve the footwear that you were wearing, and take photographs of the soles. Do not wear them again;
- Get the names and contact information of any witnesses;
- See your family doctor immediately, and follow his or her treatment recommendations;
- Give notice to any appropriate government entity (some municipal notice periods are as short as 21 days, which if not, met can bar your action); and,
- Sue well before the 2 year Limitation Period Deadline expires.
Article by Walter W. Kubitz Q.C., a personal injury lawyer, in Calgary, Alberta.