Occupiers’ Liability Part II: Licencees
April 06, 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.
Part I of the series discussed invitees, those who are permitted on an occupied land by the occupier, usually for the benefit of the occupier.
The “licencee” is identified as one who, for his or her own purpose or interest, goes onto premises occupied by another with the occupier’s consent or sufferance. It is important to note that consent can be implied as well as express.
Generally, the duty of care owed to the licencee is the duty of reasonable or due care (previously, it was a much lower standard of care, “wilful, wanton and reckless conduct”). A leading case on the duty owed to a licencee and the degree of the duty is from the Supreme Court of Canada by way of Nova Scotia, Mitchell v. CNR (1975). A nine year old took a path along a railway embankment. The path was in general use. It was slippery and the child tripped and fell into the way of a train, losing a leg as a result. There was no signage warning the public of the railway right of way and a fence that had existed, had long since fallen down. It is in this period that the courts are rethinking the duty owed to a licencee as opposed to an invitee. The court stated that the occupier should have considered its awareness of the use of the path, the path’s proximity to the tracks and that winter freezing would create an icy and slippery condition. This should have raised a ‘foreseeable’ risk of harm and a warning should have been made in the form of signage.
An Ontario court was clearer in the obligation owed to a licencee. In the 1980 case of Urzi v. Board of Education, the plaintiff was a mother who had taken her daughter to school and on the way home, slipped on the sidewalk controlled by the school. There was a thin veneer of snow over ice. Liability was found on this basis:
- There was no difference between the duty owed to an invitee and that owed to a licencee;
- The occupier owed the duty to take reasonable care to avoid foreseeable risk of harm from any unusual danger on the occupier’s premises of which the occupier actually has knowledge or of which he or she ought to have knowledge because he or she was aware of the circumstances;
- The question of what is an unusual danger was important when, in this case, snow and ice are not unusual in Toronto in the winter. However, were the circumstances unusual on a busy walkway in front of a school some time after 9 a.m. in the morning? Further, it was a danger that was easily rectified (with salt and sand) and the defendant had the ability and equipment to deal with the problem.
What the court implied as a consideration is “what is a reasonable expectation under the circumstances?”
A more recent example of the approach to licencees was found in the 2002 Alberta case, Jetz v. Calgary Olympic Development Assn. The plaintiff was a cyclist who was thrown from his bike when he hit a speed bump on a road owned by the defendant. The speed bump had only been installed 4 days earlier, and was steeper than mandated by generally accepted road traffic standards (it was similar to those found in parking lots). It was not painted and was difficult to see. While there was a sign, it was on an existing pedestrian crossing warning sign and was posted one foot from the ground. The plaintiff was within the speed limit.
The defendant tried to suggest that the plaintiff was a “trespasser”, relying on signs at an unlocked gate stating the road was private, and the cyclists were to ride in single file, wear helmets and obtain tickets although the ticket process was not yet implemented.
The court found that the plaintiff was clearly a licencee as the association encouraged cyclists to use the road, and that the defendant had failed to avoid a foreseeable risk of harm from any unusual danger by placing the speed bump in an inappropriate location, failing to make it visible or provide proper warning signs and installing the wrong type of bump.
As the above case demonstrates, while there will be some cases in which it is easy to determine who is a licencee, there will be others in which it will be far more difficult. If it is determined that there is common usage of premises, although there is no clear consent, in essence, the usage is condoned, then it is quite likely that a licencee relationship will be found. It is clear that the duty owed to a licencee is basically the same as that owed to the invitee.
So you ask “how does this affect me?” Most recreation facilities will find themselves in the position of inviting most of the people who attend the facilities. However, there may be observers who would fall into the licencee class, and there might be participants who are also in the class, such as off-campus users of tracks, campus roadways or paths. The bottom line is that the same duty of care owed to an invitee is owed to a licencee, to avoid any foreseeable risk of harm from an unusual danger. What is clear is if there are premises that are not officially for use, but the campus is aware of usage, this could be seen as condoning the activity and the same standard applies.
There is no magic bullet regarding parameters of ‘unusual danger’, rather it appears that it is a bit of a moving target. If there is a clear danger, fence off the area and place signage warning potential users that the area is unsafe for usage. If there is a change in the premises, be clear about the change with warnings and signage. Include the area for patrol by campus police/security.
One of the key issues was the effect of snow and ice. As can be seen from Urzi, this is a great example of what might not be an unusual danger for the normal homeowner, but for an institution during a time of day when there is higher traffic, the danger jumped to unusual.