With the summer days upon us, nothing is more pleasant than a cool breeze to refresh us from Ottawa’s infamous humidity. However, when those cool breezes become stiff winds, damage and injury may result. On April 28, 2011, Ottawa experienced one such windy day. On this particular day, high winds caused power outages, fallen trees and other mayhem which wreaked havoc on roads and residences all over Ottawa. At least a dozen people were injured, some seriously, and some of these incidents may have been prevented with a little foresight.
Even though we can’t control the wind, as property owners, we are legally responsible to take reasonable steps to create a safe environment for others who may be in the wrong place at the wrong time.
Ontario’s Occupier’s Liability Act requires occupiers to take reasonable steps into making their premises safe. “Occupiers” include people in physical possession of premises and people responsible for the condition of premises or the activities carried on there. Therefore, the term occupiers would apply to both home owners and business owners. The definition of premises includes lands and / or structures, and would include homes, cottages, office buildings and other real property.
The general rule is that occupiers owe a duty to take reasonable care in all circumstances that people entering the premises, and the property brought on the premises by those people, are reasonably safe while there. This duty of care does not require us (as home owners or business owners) to remove every possibility of danger. The test is one of reasonableness, not perfection. What is reasonable when Mother Nature creates a storm?
What is considered to be reasonable in wind-cases is dependent upon the circumstances, which is why each case is decided based on its own unique set of facts.
For example, in the 2006 Ontario Superior Court of Justice case Goodhew v. Twin Hut, a large Pizza Hut sign detached from its frame during a wind storm and slammed through the windshield of the plaintiff’s parked car. The court ruled that the manager of Pizza Hut did not act reasonably in ensuring the safety of people on the premises. In particular, the court noted that the manager had experienced similar instances of detached signs before and ought to have known of the risk that it could separate on a windy day.
In the 2008 British Columbia Supreme Court case Wilde v. Cambie Malone Corp., the defendant restaurant had an outdoor patio area with large umbrellas. On a breezy day, the wind dislodged one of these umbrellas, which hit the plaintiff on the head. The court ruled that there was a foreseeable risk of harm as the wind gust in question was the type that the owners of the restaurant could reasonably expect, given the restaurant’s location by the water. Further, the defendant breached their duty of care to the plaintiff as the umbrellas were not properly secured and the restaurant did not have a policy in place requiring that the umbrellas be taken down on windy days.
Again, occupiers are only liable to take safety measure for winds that can be reasonably expected. The 1941 English case of Cushing v. Walker & Son helped to establish the test for when a defendant is to be excused from liability. In that case, the court noted that “the wind must not merely be exceptionally strong but must be of such exceptional strength that no one could be reasonably expected to anticipate such strength or proved against it.” In other words, the wind gusts must be of the type that could reasonably be expected in order to find any liability.
As we can see from these cases, there are proactive steps that occupiers can take to avoid damage, injury and liability. These steps include securing items on your property to ensure that they do not blow away in the case of strong wind, or removing and storing items that cannot be safely secured. Occupiers do not have to guarantee safety but must take all reasonable steps in creating a safe environment. What is reasonable depends on an individual’s unique circumstances and therefore, one should consider examining and thoroughly securing his or her property.
Howard Yegendorf is a partner in the law firms of Howard Yegendorf & Associates LLP and BrazeauSeller LLP. He practices personal injury law. Howard is certified by the Law Society of Upper Canada as a specialist in civil litigation and is also a Chartered Insurance Professional. To contact Howard, email or call 613-800-9094 ext. 233.
One of the most common types of personal injuries for which homeowner insurance is used is slip and fall injuries. Each case is determined on its own merit, based on whether or not the homeowner allowed a dangerous condition to occur. The finding of liability for negligence is possible if the homeowner does not take measures to try to prevent an injury from happening, such as failing to shovel snow on the driveway, leading to slippery conditions. Or, inside the home, the homeowner could fail to have adequate lighting or the absence of a railing on the stairs to the basement. Liability is also possible as a result of leaving a pool open and accessible when away on vacation, even if no one in the home was given permission to use the pool in the homeowner’s absence. In each of these situations, there are reasonable precautions that a homeowner could have taken but failed to do so.
One of the benefits of home insurance liability coverage is that there are no age restrictions, meaning coverage is available to a person of any age who meets the criteria for compensation. Home insurance could be the only coverage for a senior, as most disability insurance plans provide coverage only until age 65.
Another advantage of the liability coverage portion of the homeowner’s insurance is that it covers situations that arise when you are not home. For example, there is coverage in a situation involving a child who gets hurt climbing your fence when getting his ball.
A further advantage of homeowner’s insurance is that it provides coverage for liability caused by the homeowner’s pet, which is not typical of other insurance policies. As such, coverage is provided for the homeowner if his or her dog wanders off the property and bites someone.
Preparing a defence by the insurance company does not provide assurance that the claim is covered. For coverage to apply, the act must be accidental and/or negligent, meaning it can be one or the other or can be both. Liability policies provide coverage for accidental acts and negligence, but not intentional acts, and there could be a question raised about whether the policyholder acted intentionally. If coverage from homeowner’s insurance does not apply for a personal injury claim because the act was deemed intentional, other potential sources of liability insurance (e.g., travel insurance or disability insurance) will not apply either. Details of the insurance policy plan will provide some information about claims that are covered.
If you are found to have contributed to your injury due to acting negligently in some way or you failed to follow treatment recommendations thereafter resulting in longer term injury or further injury, your compensation for damages may be reduced. For example, if you were not wearing prescription glasses or footwear or were eating or drinking while you slipped and fell, you may have some liability apportioned for the injuries sustained. Further, a breach of terms and conditions could be found on your part if you were intoxicated at the time of the accident.
Your financial compensation for the accident you were victim to will be reduced, but perhaps less so, where it is found that both parties (e.g., you and the homeowner) acted negligently. For example, a pedestrian in an accident involving a bicycle has some comparative negligence if he was struck when crossing the road illegally or walking along the right side of the road where no sidewalk exists, which is also illegal.
Where coverage is applicable, home insurance policy compensation for a personal injury will not be as comprehensive as a personal disability insurance policy. However, depending on the injuries suffered, some home insurance policies will pay out on multiple injuries (to a point) and some can have compensation levels in the six-figure range for a single injury. The amount of compensation will depend on the facts of the case and the long-term effects of the accident.
Hiring a lawyer who knows the relevant laws and the insurance coverage available will put you in a position to obtain the maximum financial compensation possible for the injuries sustained.
If you have a personal injury accident, your lawyer’s role is to manage the case from the beginning through to the end. He or she will contact the homeowner’s insurance for verification of the policy and submit a claim within the two-year statute of limitations period. Your lawyer will caution you and provide guidance on what to tell others and what to do until after the accident claim settles. Your lawyer will represent you legally and put forth arguments that are in your best interests. Your personal injury accident lawyer will help you to obtain the maximum settlement possible for your personal injury situation. At Howard Yegendorf & Associates in Ottawa, Ontario, we serve residents for various personal injury claims in Ottawa and the surrounding area. Contact us today to schedule a free consultation.