OCCUPIER'S LIABILITY

C)

, . . - . ,

Thes~ materials were prepared by Patrick Kelly,.QC,()fGaul~y&Co. lawfirm Regina, Saskatchey,an,for the Sask~tchewa,n Legal Education. Society and Saskatchewan Trial Lawyers Assoc. joint conference,New Challenges; October, 1999. .

( )

)

), I.

OCCUPIER'S LIABILITY

THE CURRENT TEST

(a) Common law duty of care owed to an invitee by an occupier

Indermauer v. Dames (1866), L.R. 1, CP 274; affirmed L.R. 2, CP 311.

(b) Unusual danger

London Graving Doc v. Horton, [1951] A.C. 737 (H.L.)

(c) Objective sense

Strongman v. Oshawa Holdings Ltd. (1979), 61 A.P.R. 456 (P.E.I.S.C.)

2

II. THE COURTS APPROACH TO THE TEST

(a) Duty of the occupier is not absolute

(b) Reasonableness, not perfection

(c) Act of compliance with duty of care

(d) Reasonable maintenance and inspection program

(e) Reasonable care is a question of fact

),3

III. REASONABLE CARE FOR ONESELF

(a) Invitee's knowledge of unusual danger

(b) Warning of unusual danger

(c) Creation of danger to oneself

4

IV. DANGER OR DANGERS?

(a) Is the standard of care imposed on an occupier changing?

Minke v. West/air Properties Ltd., [1990] 5 W.W.R 371 (Sask.Q.B.)

Leibel v. West/air Foods Ltd. et ai, Q.B.G. No. 2453, lC.R., June 7, 1999

(unreported) per Zarzeczny, J.

5

V. "SIGNS, SIGNS, EVERYWHERE THERE'S SIGNS"

(a) Effective to absolve the occupier?

(b) Contribution to invitee's knowledge

(c) Waivers

, ')

)

I

OCCUPIER'S LIABILITY*

*THIS PAPER DEALS PRIMARILY WITH THE RELATIONSHIP OF

INVITOR-INVITEE AND RETAIL ESTABLISHMENTS

PATRICK A. KELLY, Q.c.

I

)

I

) 2

TABLE OF CONTENTS

Page

I. THE CURRENT TEST 3

II. THE COURTS' APPROACH TO THE TEST 3

III. REASONABLE CARE FOR ONESELF 6

IV. DANGER OR DANGER? 9

V. "SIGNS, SIGNS, EVERYWHERE THERE'S SIGNS" 10

)

I. I

I

I

) I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I. I

I

3

I. THE CURRENT TEST

The common law has and continues to govern the area of occupier's liability in the province of

Saskatchewan. An invitee is one who enters premises "...upon business which concerns the

occupier and upon his invitation, express or implied. "I

It therefore remains settled law that an invitee, using reasonable care on his or her part for his

or her own safety, is entitled to expect that the occupier shall use reasonable care to prevent

damage from unusual danger of which the occupier knows or ought to know. 2

The accepted general definition of unusual danger is as follows:

"Unusual means such danger as is not usually found in carrying out the task whichthe invitee has in hand."3

In addition, "unusual" is to be used in the objective sense and relative to the kind of premises

visited and to the class of persons visiting. It simply means a danger that the particular invitee

could not be expected to foresee and to guard against in order to avoid being injured. In the case

of a retail store an unusual danger would be a danger that is not usually found by customers

when they come to shop on the premises.4

II. THE COURTS' APPROACH TO THE TEST

Whether or not the occupier in any particular case has met the duty to take reasonable care is a

question of fact to be determined on the evidence. The legal standard of care imposed on an

occupier does not impose strict liability nor should it. The courts, for the most part, have taken

care in making findings of fact not to impose strict liability or establish an unreasonable degree

of care. It is accepted by the courts without question that an occupier cannot be an insurer of

those who enter on the premises. 5

Ilndermauer v. Dames (1866), L.R. 1, CP 274; aff. L.R. 2, CP 311.

2lndermauer v. Dames, supra.

3London Graving Doc v. Horton, [1951] A.C. 737 (H.L.).

Campbell v. Royal Bank of Canada (1963), 43 D.L.R. (2d) 341 (S.C.c.).

I

4

It is suggested that in this area of the law the courts in Saskatchewan have, at least to date,

consistently defined the standard of care imposed on an occupier and have consistently addressed

the question whether the occupier used reasonable care to prevent injury and damage in each

case. Accordingly, occupiers have the advantage of knowing the standard of care they must meet

on an ongoing basis and have not had to worry about ever changing standards.

Our courts usually approach the issues with the traditional four questions as in Beaman v. Canada

Safeway Ltd. :6

"1. Was there an 'unusual danger'?

2. If yes, was it one which the defendant knew or ought to have known about?

3. If yes, did the defendant use reasonable care to prevent damage from theunusual danger?

4. Was the plaintiff contributorily negligent?"

Obviously, what constitutes reasonable care will vary significantly with respect to different types

of retail establishments. For example, more will be required of a grocery store than of a clothing

store simply due to the traffic volume and the items offered for sale in each. However, in most

cases regardless of the nature of the occupier's business, it is relatively easy to conclude whether

or not some substance on the floor constitutes an unusual danger. Certainly whether or not an

invitee attends a grocery store to shop for groceries or a clothing store to shop for a suit, the

unexpected presence of a wet or slippery substance on the floor will constitute an unusual danger.

As there seldom is any evidence as to how a substance came to be on the floor or how long it

was there, the question then to be determined is what steps did the occupier take, in his or her

particular circumstances, to prevent injury to customers caused by the unusual danger.

4Strongman v. Oshawa Holdings Ltd. (1979), 61 A.P.R. 456 (P.E.I.S.C.).

5See: Ludwig v. Canada Safeway Ltd. (1986), 46 Sask.R. 116 (Q.B).

6Beaman v. Canada Safeway Ltd. (1993),115 Sask.R. 100 (Q.B.); aff. (1994),123 Sask.R. 244

(C.A.).

supra, footnote no. 5, p. 101

)

5

It should be noted that it is an extremely rare occasion where it can be established that an

occupier, particularly a retailer, actually knew of the existence of the unusual danger and did

nothing to remedy it. It would appear to be the antitheses of the concept of reasonableness to

pursue such an allegation in the absence of clear evidence as most commercial occupiers depend

on the continuing goodwill of customers and their attendance on the premises. In practical terms,

the question usually comes down to whether or not the occupier ought to have known of the

presence of the unusual danger.

Of course, it is insufficient for a plaintiff invitee simply to establish that an unusual danger was

present and an injury resulted. The issue to be determined is whether or not the occupier in fact

met the requisite standard of care. That requires the defendant occupier to adduce evidence and

establish that there was a reasonable maintenance and inspection program or policy in place.

Whether or not that program or policy will meet the· standard of card depends upon the nature

of the business being carried on in the premises and the nature of the items offered for sale.

Obviously, what is reasonable will vary significantly between for example, a grocery store and

a salvage yard. The respective arguments at this point centre on whether or not the occupier's

maintenance and inspection program is in fact reasonable in the circumstances or whether more

could have and should have been done to meet the standard. It is safe to say that regardless of

the nature of the business being conducted in the premises there must be some program in place.

Our courts, of course, require more than evidence that the occupier has an established reasonable

maintenance and inspection program. A defendant occupier must also adduce evidence that the

program or policy was in fact followed generally and on the particular date in question. That

requires evidence as to how the program is in fact implemented, the hierarchy of employee

responsibility for implementation and enforcement of implementation. In keeping with the

concept of reasonableness, our courts will not base a finding of liability simply on an employee

error or missed assignment. However, there should be evidence before the court as to how such

errors are dealt with and what is regularly done in a reasonable attempt to correct errors and to

attempt to prevent employee assignments from being missed.

/

I

6

Further in keeping with the concept of reasonableness, our courts do not require the defendant

occupier's witnesses to be able to specifically recall what precisely they did on a certain date one,

two or five years ago. It is normally sufficient if the evidence reveals the program in place and

that it was a matter of practice followed daily at the time in question. Many occupiers have

adopted the practice of maintaining records on a daily basis that require employees to record the

task performed and the time thereof followed by the employee's signature or initials. The value

of such records in establishing that the program is being followed is obvious.

In summary, our courts, in order to find as a matter of fact that the occupier has taken reasonable

care in the circumstances, must be satisfied on the evidence that there was a reasonable

maintenance and inspection program in place and the reasonable program was implemented and

was being followed. It is submitted that the reported cases in Saskatchewan generally reflect that

approach.

III. REASONABLE CARE FOR ONESELF

As initially stated the common law requires that an invitee must exercise reasonable care for his

or her own safety. Whether or not such care has been exercised in the circumstances is also a

question of fact. Could the invitee be expected to foresee the danger and to guard against it in

order to avoid being injured? Again, the answer to that question will depend on the class of

invitee and the nature of the business in the premises.

Obviously, determination of this question of fact will depend on whether or not the invitee has

knowledge of the existence of an unusual danger. Was the presence of the unusual danger so

obvious that a reasonable person would be aware of it and would guard against it? If such clear

circumstances exist (and most often they do not) that would be sufficient to absolve the occupier

from liability.

Often the issue arises in situations where there is some warning of the unusual danger. If a

defendant occupier relies on adequate warning as a defence, the warning conveyed will have to

be clear, unambiguous and in fact communicated to the invitee. In the writer's opinion, general

,I

)

)

7

signs warning as to the general possibility of, for example, a slippery floor would be inadequate.

The posting of such signs may be one factor going towards establishing reasonable care but it is

unlikely their presence could be taken to be a reasonable or adequate warning of a specific

unusual danger. The same could be said of signs that are too small or too drab to capture the

invitee's attention,.particularly if they are commingled with signs and banners designed to attract

the invitee's attention. Of course, if occupiers put up any general warning signs at all, they will

have to be cognizant of the plaintiff who will attempt to argue that that means the entire floor

is dangerous in and of itself!

Scollin, 1. addressed the effectiveness of general signs in an unreported decision in the Court of

Queen's Bench of Manitoba.? In the vestibule of the store there was an orange warning cone and

a standing notice which drew the attention of customers to slippery floors by both words and an

unmistakable graphic illustration. The plaintiff tripped over a bump in a floor mat. At p. 5 he

stated:

"However, in the circumstances of this case, I think that notices of the sort set upin the vestibule about wetness and slipperiness serve only as a reminder of theusual spillage and floor-cleaning dangers of grocery stores; and in a climate whereMother Nature is sometimes an abusive parent, they serve also as a general signalto customers that indoors is liable to invasion from outdoors by underfoot hazards.What they do not do is isolate any specific danger from movement on thewalking-surface itself."

It has been judicially stated that an occupier is entitled to assume that an adult invitee will heed

an adequate warning. 8 In the Hale case, an employee of the defendant spilled water on the floor

while carrying a mop and pail. The plaintiff s husband and daughter saw the water being spilled

and the daughter cautioned the husband. The husband called out to the plaintiff to warn her.

The plaintiff was looking in a meat counter when she heard her husband calling to her. She

started to walk toward her husband, stepped in the water and fell. The defendant's employee was

?Dowbenko v. Westfair Foods Ltd., Cl 95-01-87323 (Winnipeg Centre), Court of Queen's Bench

of Manitoba, December 13, 1996 (unreported).

8Hale v. Westfair Foods Ltd., [1995] 3 W.W.R. 293 (Sask.Q.B.).

8

at the spill. His bright yellow pail was on casters and had a conspicuous slip-and-fall warning

emblem on it. It should be noted that the plaintiff in this case suffered from a partial paralysis

of her left side causing her to drag her left leg as she walked.

In his decision, Baynton, 1., discussed the results that can flow from the determination of the

fourth question, i.e., did the plaintiff use reasonable care for his or her own safetyt Judge

Baynton concluded that the plaintiff failed to take reasonable care for her own safety because she

was warned, she knew of the water spilled on the floor and saw the defendant's employee. Yet

she took no precautions. It is suggested that few cases are as clear cut but knowledge on the part

of an invitee is a very important factor.

In addition, in the Hale case, Judge Baynton dealt with an issue that can arise in such a case

being that of the plaintiff wearing inadequate and inappropriate footwear. to He found that the

moccasins the plaintiff was wearing were inadequate and inappropriate for the type of flooring

one could expect to encounter in a supermarket. They would have posed a danger for a person

without disability and were doubly dangerous for this particular plaintiff. In the end result Judge

Baynton held that the plaintiffs negligence was the sole cause of her fall and injury.

It appears that a choice of inadequate or inappropriate footwear could constitute an invitee's

creating a danger to himself or herself. Of course, determination of that issue will depend on the

facts of each particular case. It is submitted, however, that in most cases where it is concluded

that the invitee's footwear is inappropriate, it would likely result in a finding of contributory

negligence only.

9supra, footnote no. 8 at p. 302.

IOsupra, footnote no. 8 at p. 303.

./

I

9

IV. DANGER OR DANGER?

Has the common law duty of care imposed on an occupier changed in the province of

Saskatchewan? In the writer's opinion, the answer is no but the recent decision in Minke v.

Westfair Properties Ltd. II does, in the minds of some, raise the issue. It should be noted that the

decision is presently under appeal.

In that case, the plaintiff slipped and fell on rice that had spilled onto the floor. Mr. Justice

MacLeod found that the defendant occupier had knowledge of the presence of the rice on the

floor and that it failed to take reasonable steps to protect the plaintiff from the unusual danger

presented by the rice. At p. 374 of the report he concluded that the defendant was at fault using

the test based on Indermauer v. Dames.

From that point Mr. Justice MacLeod, in obiter, went on to argue that that was not very

satisfactory and that the legal principle represented by Indermauer v. Dames demands only a

minimum of intellectual energy. Further, he stated that the duty of care presently imposed on

an occupier by the common law "...hardly seems to be a rational proposition." 12 The balance of

Mr. Justice MacLeod's argument in the decision is to the effect that the duty of care owed to an

invitee should be the higher duty of care which is owed to a contractual entrant, i.e., to guard

against dangers which are reasonably foreseeable.

It would be inappropriate to comment too much further on the Minke case as it is under appeal.

However, a practical question that no doubt comes to mind is whether or not the present

difference in the law between the duty owed to an invitee and that owed to a contractual entrant

is of any significance. It could be argued that virtually any slippery substance on the floor of

retail premises constitutes a danger and the occupier owes a duty of care regardless of the class

of the entrant.

11[1999] 5 W.W.R. 371 (Sask.Q.B.)

12supra, footnote no. 10 at p. 374

10

However, it must be remembered that there are many different kinds of occupiers and the

circumstances in cases other than retail premises may not lend themselves to an easy or proper

interchange of the concepts of unusual danger and reasonably foreseeable danger. Accordingly,

the end result would be to impose an absolute duty to ensure the safety of invitees. In any event,

those arguments are best left for a hearing of the Court of Appeal.

Certainly, in one important factual situation involving invitors and invitees in the province of

Saskatchewan, it is submitted that the concept of unusual danger is critical. One need do no

more to illustrate this point than to quote the oft cited statements of the late Mr. Justice Lawton

in Betteridge v. School Children Co-operative Centre: 13

"Is snow on a Regina sidewalk in February an unusual danger? I think not. Snowcomes every year. We know it does, and we govern ourselves accordingly.Among the things we do is adjust our dress and modify our walking by beingmore careful. The plaintiff, an adult, living in Saskatchewan, surely knew aboutsnow and what had to be done to live with it."

Finally, it is worthy of note that the plaintiff's counsel argued the Minke approach in a recent trial

before Mr. Justice Zarzeczny.14 In his reasons for judgment dismissing the plaintiff's claim, he

applied the common law of the province of Saskatchewan and held that the defendants had taken

reasonable care to prevent injury to the plaintiff invitee from the unusual danger. He did not

mention the Minke case in the judgment nor refer to any other applicable standard of care.

V. "SIGNS, SIGNS, EVERYWHERE THERE'S SIGNS"

Will the posting of an exclusionary or warning sign constitute compliance with the requisite duty

of care by an occupier? As seen in the Dowbenko decisionl5 simply posting a sign will not

necessarily absolve the occupier. Unusual dangers are normally of a specific nature and positive

action is required on the part of the occupier to meet the standard of care. For example, in

circumstances such as in the Hale decision, placing a warning sign quickly at a spill location may

be sufficient provided that there is a procedure in place and it is being followed to clean it up.

13(1994),119 Sask.R. 213 (Q.B.) at p. 216.

14Leibel v. Westfair Foods Ltd. et al Q.B.G. No. 2453 of 1996, J.C.R. June 7, 1999 (unreported).

I

11

The nature and quality of the posted sign is critical. In Burant v. Fort Ignition Limitedl6 the

defendant's store was being renovated. The plaintiff saw that the lights were on and in the store

there were people moving around. Floorboards had been removed at the entrance creating a hole.

The plaintiff stepped in and fell through the hole six feet to the basement. There was a

handwritten sign posted at the door that read "DO NOT ENTER - DANGER - MEN

WORKING". It was beige in colour and posted at eye level at the door. The court found that

the sign was not sufficiently conspicuous to compel the attention of a customer who saw the

lights on and people inside the store. It was also held that the sign was not sufficiently precise

to warn a customer who read it of the immediate danger at the threshold of the door.

Obviously to be effective, a warning sign must be conspicuous and it must be specific enough

to convey to the reader the nature of the danger. If the attention of the invitee is not drawn to

the sign in the first place it will be held to be insufficient. For example, in Nieto v. Bison

Properties Limited'7 the plaintiff tripped on an unusual step while leaving a hotel There was a

sign posted on the inside and outside of the building that stated "PLEASE WATCH YOUR

STEP". The court held that the sign was insufficient to satisfy the duty of care of the hotel. The

sign was too discreet, too small and not at eye level. Therefore, it was concluded that the

attention of an invitee would not necessarily be drawn to it.

Similarly, in Cooper v. Canada Safeway Limited'8 the plaintiff slipped on the floor of the grocery

store as she was leaving. The floor was wet at the time due to the weather conditions. There

was a sign posted warning of the slippery conditions. In that case the sign was held to be

insufficient because it was hand printed in black ink by an employee and was difficult to see.

Further, it was held that the sign would appear similar to other signs posted and blend in with

advertising specials.

15supra, footnote no. 10.

16[1986] S.1. No. 626 (Q.B.).

17[1995] B.C.1. No. 642 (B.C.C.A.).

18[1986] B.C.J. No. 1207 (B.C.S.C.).

I

12

Based on the foregoing and other cases, it would appear that if an occupier hopes to provide

adequate warning of an unusual danger to invitees, the warning must be conspicuous, precise and

specific so as to give the invitee reasonable opportunity to comprehend the danger and the risk.

The ,courts have not been specific as to what constitutes the appropriate minimum warning that

is required to communicate the characteristics of the danger to an invitee. Certainly, colour, size

and the height of the sign are all important factors. No doubt a warning sign should not have

too much content or the next argument would be that an invitee could not reasonably be expected

to stop and read it before proceeding.

It is suggested that an occupier would be ill advised to rely solely on general warning signs that

may be insufficient to warn of a specific unusual danger. Such signs may be one factor to be

considered in deciding the issue of reasonable care. An occupier is far better served to ensure

that there is a proper safety and maintenance program in place and being followed. Then where

appropriate, the occupier can provide specific warnings to invitees upon becoming aware of any

unusual danger.

There is another area where signs may become an issue in the field of occupier's liability. That

is where occupiers attempt to exclude liability by signs alone or in combination with tort

exemption clauses. It should be noted that these situations often involve contractual entrants or

premises where there is a "activity duty" imposed on the occupier as opposed to a "occupancy

duty". The former duty is a duty based on the inherent or foreseeable risk entailed in the activity

. carried on by the occupier or someone else on the premises. Both contractual entrant and activity

duty situations involve a higher standard of care.

Perhaps the problems in this area of the law are best expressed by a writer, Jan Weir19 in an

article concerning tort exemption clauses wherein he posed the question:

"Can any lawyer say with confidence whether the 'park at your own risk' sign atthe entrance of the ordinary parking lot will be enforced?"

19The Lawyers Weekly, October 8, 1999.

I

13

The same question can be posed with respect to "ride at your own risk" and similar signs. The

Davidson v. Cuming Boros Holding Limitecf° case involved a go-cart accident wherein the

plaintiff got her hair caught in the rewind mechanism of the cart. Signs were posted on a fence

adjacent to the sidewalk leading up to the premises and in the building stating that long hair must

be worn up and patrons drive at their own risk. It was held that the signs were inadequate

because they failed to warn of the nature of the danger. A sign cannot be said to be effective

unless it conveys to the reader the nature of the danger.

The outcome was different in McQuary v. Big White Ski Resort Limited21 where the plaintiff was

injured at a ski resort. The resort attempted to exclude liability through the use of a waiver form

and notice signs posted around the building. The signs were between 8" x II" and 14" x 18"

with a yellow background and a red border. The words were bold face and in black capital

letters. The court held that the signs, which were prominently posted around the areas in which

ski tickets were sold, were sufficient in that they were clearly visible and designed to attract

attention with the bright colours. It was further held that the language was straightforward and

unambiguous and if the signs were not seen or read, it was as a result of the plaintiff's own

carelessness. Finally, it was held that the plaintiff took reasonable steps to bring the exclusion

to the attention of its patrons.

In Wessell v. Kinsman Club ofSault Ste. Marie 22 the court considered a "swim at your own risk"

sign. A young boy drowned while playing on a floating dock. In considering the adequacy of

the sign posted on the front gate, the court stated:

"To rely upon a sign at the gates to the park that you swim at your own risk inunsupervised areas ... does not and cannot on the part of the Kinsman Clubamount to taking reasonable care to avoid which was clearly a foreseeable risk,given the circumstances and its awareness of the danger."

2°[1995] B.C.J. No. 396 (B.C.S.C.).

21[1993] B.C.J. No. 2956 (RC.S.C.).

22[1982] 137 D.L.R. (3d) 96 (Gnt.H.C.).

!

14

Of course, there are many more reported cases dealing with the issue of the adequacy and

effectiveness of warning signs and exemption clauses. Often such cases will involve a

defendant's plea ofvolenti nonfit injuria which is beyond the scope of this paper. Jan Weir, the

writer previously referred t023 noted that tort exemption clauses are often enforced in the high-risk

tort situations such as downhill ski racing24 and white water rafting excursions.25 Perhaps that

implies that the higher the risk, the greater the knowledge of and acceptance of the participants.

In any event, as in many areas of life and the law, communication is essential and to simply rely

on a sign is fraught with its own form of risk to an occupier.

23footnote no. 21.

24Carroll v. Silverstar Mountain Resorts Ltd. (1998) 33 B.C.L.R. (2d) 160 (RC.S.C.).

25Delaney v. Cascade River Holdings Ltd. (1983), 43 B.C.L.R. 24.