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Sidewalk storefronts beware as Starbucks burned by liability decision

Businesses that open onto city sidewalks should reassess their risk levels after Starbucks was found liable for a woman’s injuries in a fall, says Toronto insurance defence lawyer Heather Vaughan.

In its recent decision, the Court of Appeal for Ontario upheld a lower court ruling that found the coffee chain responsible under Ontario’s Occupiers’ Liability Act for part of the icy sidewalk at the entrance to its patio where the woman fell and broke her ankle in a 2007 accident.

“Owners of businesses that exit onto sidewalks will want to reassess their risk management strategies,” Vaughan, a partner at Benson Percival Brown LLP, tells AdvocateDaily.com.

“I think it would be prudent to take whatever steps they can to make nearby sidewalks safe, especially if their customers are going to be using those areas,” she adds.

“It’s not a problem to salt and shovel” sidewalks, Vaughan says, noting that a body of case law indicates that more than this type of clearing, whether in compliance with municipal bylaws or otherwise, will be needed to be deemed an occupier under the Act.

Vaughan says the decision doesn’t break any new ground on the definition of an “occupier.” There is “no blanket rule,” but judges decide on a case-by-case basis whether there is enough shared “possession” or “control” of the sidewalk with the municipality, she explains.

Still, Vaughan says business owners should be concerned by the way the law was applied in the Starbucks case.

The trial judge found that in addition to its salting and sanding of the sidewalk, the configuration of the coffee company’s patio and fence created a path that included the portion of the sidewalk where the woman slipped. As a result, “Starbucks assumed sufficient control over the sidewalk and the persons it allowed to enter its premises using the sidewalk, to come within the definition of Occupier,” the judge wrote.

“I’m surprised this was a case where deemed control was found,” Vaughan says. “ Many premises will have an exit onto the sidewalk like this.”

Previous cases where businesses have been found liable under the Act involved more obvious connections between the alleged occupier and the sidewalk, she adds. For example, one case involved a store that had obtained a city permit to display items for sale on the walkways in front of its shop.

Starbucks appealed the initial decision, claiming it had done no more than any storefront owner whose customers come in via the sidewalk. However, a three-judge panel of the appeal court disagreed, finding no fault with the lower court judge’s assessment of the evidence.

“It was open to the trial judge to conclude that Starbucks was an occupier within the meaning of the Act of the portion of the municipal sidewalk at the threshold of its patio entrance,” they concluded.

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