Slip and falls, trip and falls and most incidents resulting in injury on commercial or residential property are captured by occupiers’ liability law.
This law basically states that an occupier of a premise, like a house or business, must take reasonable care to ensure that the premises are reasonably safe. That is the occupiers’ duty. The key word is “reasonable”. The “reasonableness standard” can be unpredictable.
The injured person must prove that the occupier breached its duty, and that the breach caused the injured person’s loss. The standard of proof is on a balance of probabilities, meaning more likely than not.
The occupiers’ duty is an affirmative duty. An element of the reasonableness standard is that the occupier must be pro-active in their duty. This means that the occupier must take steps to ensure that the property is reasonably safe and in a condition of reasonable repair.
If an occupier fails to inspect and/or maintain, his or her premises and harm results to an individual, the occupier’s lack of knowledge of the state or condition of the property is not a defence.
In other words, an occupier cannot rely on his or her ignorance of the state and condition of the premises to absolve itself of liability.
Further, evidence of post-accident repairs is admissible as evidence of a state of danger of which the occupier knew or ought to have reasonably known.
SLIP AND FALLS/TRIP AND FALLS ON A MUNICIPAL ROAD OR SIDEWALK
There are separate and specific rules when the incident takes place on a road or sidewalk cared for by a Municipality. The same rules apply to a City, Town, or District.
When a person suffers an injury on a Municipal road or sidewalk, he or she must provide written notice, by registered mail, to the clerk of the Municipality where the injury took place, within 10 days of the incident. The written notice must identify the claim (the incident) as well as the injury sustained.
Lawsuits against a Municipality that involve snow and/or ice require a higher standard of proof than incidents that occur on a commercial or residential property. In order for a Municipality to be found responsible for a person’s injuries, the person must demonstrate that the Municipality was grossly negligent in its care and maintenance of the area where the incident took place.
The Municipality must have been so careless that the Municipality can be said to have recklessly disregarded its care and maintenance of the incident area.
Further, the Municipality’s carelessness/recklessness must have created a likely risk of harm to the people using the road or sidewalk.
The “gross negligence” standard of proof only applies to incidents that involve snow and ice (i.e. slip and falls involving snow and ice).
The gross negligence standard does not apply to trip and falls on Municipal roadways or sidewalks that do not involve snow and ice (i.e. a trip on an uneven sidewalk).
In trip and fall cases that do not involve snow and ice, the standard of proof is negligence, which is the same standard that applies in occupier’s liability cases.
There is a legal principle called “contributory negligence” in which individuals who have been involved in a slip and fall, trip and fall, or other incident on commercial or residential property or municipal road or sidewalk should be aware of.
Individuals who have been involved in a slip and fall/trip and fall have a responsibility to:
– be aware of their surroundings and potential hazards;
– wear suitable footwear for the conditions and activity they are doing at the time of the incident; and
– exercise the appropriate level of caution when performing the activity that resulted in injury.
For example, an individual who is not looking where they are going, or who is wearing inappropriate footwear, ie. sandals in the middle of winter, has contributed to some degree to their injury and is “contributory negligent”.
If an individual is found to have contributed in some way to their injury, a judge will find them contributory negligent and will reduce the damage award by a percentage that reflects their level of contribution to the incident.