Occupiers’ Liability Part I: Invitee

April 07, 2011

Shelley Timms, B.A., LL.B., LL.M.
Timshel Services Inc.
Alcohol Risk Management

Editors Note: In the US, this is referred to as ‘Premises Liability’.  While there may be differences from state to state, the principles are essentially the same.

Over the next three issues of the Newsletter, Occupiers’ Liability will be explored, with each part focusing on the three categories of ‘visitor’ to a property — invitee; licencee and trespasser.

Occupiers’ liability was initially developed in the common law. Over time (several hundred years), judges began to develop the duties and obligations owed by the occupier of property to those who could be expected to enter and use the property. The occupier is the person or entity in control of the property, and therefore, includes a renter and lessee as well as owner. Occupation could be for as little as one day or evening, such as renting a hall for an event or a field for a game. Property or ‘premises’ can be mean land, structures, water, ships/vessels, trailers or other portable structures and vehicles not in operation.

In Canada, 6 provinces have transferred occupiers’ liability to statute in order to provide some clarity. They include: British Columbia; Alberta, Manitoba, Ontario, Prince Edward Island and Nova Scotia. The remaining provinces continue to rely on common law, but the general rules are the same.

Part I — Invitee

Liability owed to an invitee is probably the most common area of occupiers’ liability as retailers, municipalities, public institutions such as universities and colleges and even individuals to some extent, tend to ‘invite’ people onto their property or premises. As a result, there is a high standard of care to insure that the property/premises is safe for use by the invitees. Recreational entities need to be concerned with the duty of care owed to those who are participating in sports or games, and to the fans who occupy the bleachers.

There are three areas of which occupiers must be aware – the condition of premises; condition of the invitee; and activity that is being conducted on the premises. Condition of premises is the most obvious. Wet floors and icy sidewalks come to mind immediately, however, stairways including railings (or not) and low hanging items from a ceiling are examples of less obvious dangers. In one case, liability was found against the city of Lethbridge after a person, in snow-covered boots, slipped on wet, smooth, painted concrete floors because no steps were taken to prevent the danger of the slippery floor. Only one small mat was found at the doorway, but there were no absorbent mats such as were found in other locations. In another example, liability was found where the floor was polished to such a gloss that it was very slippery. A sports bar was held liable to a patron when the patron, using the stairs to the washroom, hit a ceiling bulkhead, causing him to fall down the stairs. While there was a warning sign on the bulkhead, it was found to be of little use when the patrons had consumed an amount of alcohol. There have been examples involving problems with fields, such as indentations that could be seen as ‘traps’ to the users.

Courts have found that a reasonable inspection programme can be a defence. This varies from a bar doing a ‘sweep’ including washrooms every 20 minutes, to inspection of playing fields on a daily basis. Signage is of limited value as it depends on its visibility, and the ability of the invitee to understand its meaning.

The second area is the condition of the invitees. The most common circumstance is those situations in which alcohol is served. Alcohol consumption can often result in violence leading to serious injury or worse. However, as it affects coordination, it can also lead to injury that would not normally occur but for the alcohol consumption. However, condition of invitees can be as simple as boisterous behaviour that can lead to an injury. Too often when a group of people gather, the group is not aware as to how their actions can lead to physical injury of others. One famous example was the picking up and carrying of fans by other fans during football games several years ago.

The third area is the activity conducted on the premise. Activities as simple as dancing, as well as more obvious higher risk activities, can lead to injury and it is up to the occupier to determine if the activity is dangerous within the circumstances. With respect to some recreational activities, the statutes and the common law have provided that some risks are willingly assumed, provided that the occupier has not created a danger with deliberate intent to harm or damage, or with reckless disregard of the presence of a person on the premises.

In many circumstances, occupiers’ liability will be found because there are two or three of the areas combined. A famous decision of the Supreme Court of Canada involved a young man who had consumed a lot of alcohol and participated in a winter inner tubing competition. He signed a waiver while impaired and survived the first heat before organizers realized that he probably should not be participating. He continued to the second heat, lost control and became a paraplegic. The court stated that the waiver was useless as he did not have the ability to understand what he was signing and that organizers should have refused to allow him to participate. Further, the resort also served him some of the alcohol he consumed. In an unusually high assessment of liability, the resort was tagged with 75%.

What to do to limit liability?
1. Develop an inspection protocol. Check grounds daily to insure that a hole or other ‘trap’ has not developed. Inside premises need to have a more frequent monitoring system especially during winter or rain weather to mop up puddles etc. Frequently overlooked areas are bathrooms which should be inspected at least on the half hour.
2. Determine what items are needed to reduce exposure. For example – absorbent mats doorways and hallways, non-slip rubber floors in pool areas, a different cleaning protocol if polishing provides a risk.
3. If activities that have some risk attached are approved, insure that there is an action plan that considers the risks and what can be done to reduce them. Also consider who will be part of the plan.
4. In situations where there will be large numbers of invitees, such as fans at a football or hockey game, insure that there are sufficient staff members to monitor behaviour of the fans. If there is any concern (aggression, alcohol etc), insure that the person leaves immediately. Too many times a ‘second’ chance is given and regretted, and the courts have been clear that the person should have been escorted out at the first sign of trouble. Also, keeping an eye on him or her once they have left the premises can be important as sometimes they wait at a doorway, wanting to carry on where they were interrupted.

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