Occupiers Liability in Slip and Fall Cases

Introduction
The Occupiers’ Liability Act in Ontario protects individuals from slip-and-falls while on commercial property, residential property, and on municipal lands. But how safe does a property need to be? Who is at fault? And when should an injured person seek legal advice? The following will help answer these critical questions.


Who is responsible for ensuring a safe environment?
The law imposes a duty on an “occupier” of a property to ensure that individuals who enter or use the premises are “reasonably” safe. Property owners or renters, as well as municipalities, are defined as occupiers and are responsible for ensuring a safe environment. This duty extends to commercial properties (malls, grocery stores, parking lots, etc.), residential properties (private backyards, driveways, etc.) and municipal properties (public parks, roads, etc.).


Injured while on someone else’s property?
If you are injured while on commercial, residential, or municipal property, the question will be whether or not the property was safe for individuals. The standard of safety that is required is reasonableness, not perfection. This means that the occupier is not expected to remove every possible threat of danger. Rather, they are expected to take “reasonable” steps to ensure that the property is “reasonably” safe.


What is reasonable?
Determining reasonability will depend on the circumstances of each incident. For example, it is reasonable that a piece of food might fall to the floor of a grocery store at some point during the day, but it is unreasonable for the piece of food to remain on the floor all day. Suppose a customer drops a cherry on the ground and 30 seconds later another customer slips and falls on the cherry. It will be difficult to prove liability because there was nothing that the grocery store could have “reasonably” done in time to prevent the fall. However, if the cherry remained on the floor for two hours before causing an injury, it will be easier to prove liability because there was a “reasonable” amount of time for the store to remove the cherry.


Anything can cause an injury
The victim should not be concerned with the level of danger posed by the occupier. For example, if the victim slips on a cherry in a grocery store, the grocery store cannot argue that a single cherry is not dangerous. If a single cherry caused the victim to fall, then it does not matter whether or not a single cherry is dangerous; all that matters is that the cherry caused the fall. The next challenge will be to determine whether the grocery store took “reasonable steps” to prevent the cherry from being on the floor in the first place, such as regular sweeping of the floors.


The environment must be safe for everybody
An occupier must ensure that the property is kept reasonably safe for all people, regardless of age, strength, or ability. An occupier will not be able to argue that the person fell because of their age or because they required the use of a cane. If the property is not safe for everyone, then the occupier may face liability. It is important that victims not blame themselves because of their age or strength before first seeking legal advice.


Can someone other than the occupier be liable?
An occupier may satisfy its duty to ensure a safe environment by hiring a third party, such as a cleaning service or a security guard. For example, suppose a person slips and falls on a puddle of water in a mall. If the mall hired a cleaning service or a security guard to ensure that the premises is reasonably safe, then the duty will fall on the third party. It is very important to determine whether there is a third party involved as soon as possible.


What if the victim was responsible for the fall?
The victim of the fall may be partly responsible for the incident, and the occupier may attempt to prove that the victim helped cause their own injuries. For example, if the victim was behaving carelessly at the time of the incident, this could result in the occupier only being responsible for a portion of the damages. Listed below are some common examples where the victim may be partly responsible for their injuries in slip and fall cases:
•    Voluntary assumption of risk: if the victim sees water on the floor and decides to walk on the water instead of going around.
•    Footwear: if the victim was wearing high-heels (rather than winter boots) while crossing an icy parking lot.
•    Behaviour of the victim: if the victim was running, texting or distracted in any way.
•    State of the victim: if the victim was drinking alcohol or was impaired in any way.
These factors will be important to remember and disclose when a victim is seeking legal advice.


What does the occupier owe a victim if they are found liable?
If found liable, the occupier will be required to reimburse the victim for any damages that occurred as a result of the accident, including loss of ability to work and earn wages, pain and suffering, medical expenses, or property damage. It is important that the victim collect any medical evidence of the injury, proof of property damage, or proof of how the injury interfered with their life. These will be considered when assessing the cost of damages.