Occupiers' Liability and the Duty Owed to Visitors

“Occupiers” of property - which, depending on the circumstances, may include owners, tenants, and renters - owe a duty of care to visitors of their property. This duty of care is set out in Alberta’s Occupiers’ Liability Act, which states that occupiers must take proper care to ensure that lawful visitors to their property 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…”. As a general rule, occupiers must ensure that their property is safe and free of hazards, and should they fail to properly do so, will be held liable to compensate visitors who injure themselves while on the occupier’s property.

Where an injury occurs to a “visitor” - which has a defined meaning within the Act, but which generally encompasses any and all persons lawfully on the property, whether truly invited guests or not - the Courts have strictly applied the terms of the Occupiers’ Liability Act and, if some act by the occupier could have prevented the injury, held that party liable to compensate the victim’s injuries. In the 1991 Supreme Court of Canada decision of Waldick v Malcolm, (1991) 2 SCR 456, Mr. Waldick slipped and fell on a patch of ice in the parking lot of the Malcolm’s rental property, and sustained significant injuries including a fractured skull. The Court concluded that as occupiers of the property, the Malcolms should have taken better care to ensure their property was free of hazards (in this case, being the ice accumulation) by applying a sand, ice melt, or grit compound to their parking lot. In their defense, the Malcolms argued that it was common custom in their small, rural town not to salt or sand parking lots and other walkways, due to the significant hassle and expense caused by the regular freeze and thaw cycles. The Courts concluded that such “local customs” do not override the legal obligations set out under the Occupiers’ Liability Act, and concluded that the Malcolms were liable to compensate Mr. Waldick for his injuries. (As an important side-note, the Supreme Court did indicate that judicial consideration of local customs may be given in certain limited situations, but that doing so was a “dangerous practice” that should be reserved for only “the rarest and most patently obvious of cases”).

Another common application of the Occupiers’ Liability Act relates to injuries sustained in commercial locations, such as grocery stores, gas station parking lots, and shopping malls. In these cases, both the property owner and the commercial tenant (the entity actually operating the gas station, grocery store, or retail outlet) may be held liable depending on the nature of the hazard. In Barnfield v Westfair Foods Ltd., (2000) ABQB 58, Ms. Barnfield was grocery shopping in the defendant’s Superstore, and tripped and fell over a metal corner protector which had been bolted to the floor to protect the produce bins from shopping cart damage. Ms. Barnfield sustained significant injuries, and sought to recover compensation from the owners of the Superstore. The Court held that although such installations are relatively common in grocery stores, the occupiers ought to have foreseen the clear tripping hazard and taken steps to warn customers or highlight the location of the danger. As a result, they were found to have breached their obligations under the Act, and therefore ordered to compensate the plaintiff for her injuries. However, the Court further found that Ms. Barnfield had also been somewhat negligent in the circumstances by not carefully watching where she was going and paying attention to her surroundings. Accordingly, the Defendant’s obligation to Ms. Barnfield was reduced by 25% - the percentage of responsibility (called “contributory negligence”) which the Court found lay with Ms. Barnfield herself.

Alberta Courts have also found occupier’s to be liable for injury even where the plaintiff was generally aware of a potentially hazardous situation. In Prosser v 20 Vic Management Inc., 2009 ABQB 177, the Plaintiff, Ms. Cherry, was injured when she tripped over the supporting foot of a temporary construction fence in the Chinook Mall parking lot. The Court concluded that although Ms. Cherry was aware of the fact that she was travelling through an active construction zone and recognized the general hazards that such construction zones carry, the occupiers ought to have taken better care to highlight the presence of the specific protruding support foot at issue. The occupiers were held liable to compensate Ms. Cherry’s injuries, though much as was the case in Barnfeld, Ms. Cherry was also found to have contributed to her injuries by not carefully watching where she was going and scanning for potential hazards. Therefore, Ms. Cherry’s award was reduced by 50% for contributory negligence.

As the above decisions illustrate, occupiers of property must always be careful to ensure that their property is safe and free of hazards, and take appropriate measures to warn lawful visitors of whatever hazards do exist. Nevertheless, incidents do still occur, and often when visitors least expect it. If you have been injured in a trip and fall incident on another’s property, please do not hesitate to contact the experienced personal injury lawyers at Rodin Law Firm for a consultation. We can be reached online, or by telephone at (403) 216-0385.