[vc_row][vc_column][vc_column_text]December 16, 2014

By Brian Babcock

Better still, do something to prevent slip and fall injuries.

With snow and cooler temperatures returning to Thunder Bay after a mild spell, the risk of a fall is high. A simple slip on ice can cause devastating injuries to anybody, but especially to our aging population.

Human decency suggests that we all owe a duty to our neighbours, our paper delivery people, mail carriers, visitors and others to keep our property safe.  But if that is not enough reason to take a few basic steps, in Ontario, the Occupiers’ Liability Act creates a positive duty for most property owners or others with control of property to “take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.”

Let’s unpack that a bit.

The duty is owed by an “occupier”. That is not necessarily an owner. It is a defined term with a broad “including” definition, so categories are not limited to those listed in the Act, which refers to physical possession of the premises or control or responsibility for any of the premises; the activities on the premises; or over people who go on the premises. It might be a tenant, or anybody else responsible for the condition of the property, but it could also be someone who organized a tobogganing party on the slope at the former Thunder Bay courthouse.

The extent of the duty is determined by the circumstances – so you do not need to keep your property ice free in the middle of a storm, and a pathway needs more attention than a backyard. Each situation is unique, so there is no “one size fits all” set of what is required.

The test is “reasonably safe”. That means that the occupier is not an insurer and does not have to absolutely prevent injury.

But because it is a positive duty, it does mean that you need to have a plan or system in place to prevent hazards as much as reasonable. You should be prepared to explain that plan to a jury.

If you are an occupier and someone falls on your property, you can expect to be sued for damages including the cost of care; lost earning capacity; pain and suffering and other claims. Avoiding the accident is your best protection, and that starts with a good program of winter maintenance. If you are sued, proving that you had a program in place might be a good defence.

Though each situation IS unique, a few general principles help you get started:

• Making a plan starts with inspection of your property;
• A thorough inspection is necessary at the beginning of the season, but should be repeated periodically – like after a snowfall covering any ice left from a warm spell, such as what we are presently experiencing in Thunder Bay;
• Note particular hazards – runoff from downspouts; dripping eaves or eavestroughing; natural flow of water across slopes; sunny spots likely to have freeze/thaw cycles; heavily trafficked areas where snow pack becomes icy, to start;
• Clear away ice and snow as much as possible, especially from well-travelled areas;
• Check walkways and  stairs with extra diligence;
• Treat with salt, sand, or ice melter as appropriate;
• Consider warning signs of hidden or extreme dangers; and
• Check again daily or as often as appropriate for your location, and the weather.

Homeowners’ insurance is good protection only if all your planning and diligence does not prevent a fall. You should review your coverage with your broker if you are not sure what you are insured for, or what the insurer expects of you. Many insurers will provide additional information about making your property safe for yourself, your family, your pets, neighbours or friends.

Winter can create a wonderland in Thunder Bay, but it comes with dangers. A bit of prevention may include a pound of salt.[/vc_column_text][/vc_column][/vc_row]