Party hosts not liable for guest's fall

By Staff

A recent decision shows homeowners shouldn’t be treated like insurance companies when a person injures themselves on their property, says Toronto insurance defence lawyer Heather Vaughan.

In the case, a three-judge panel of the Ontario Divisional Court overturned a decision that found the hosts of a 90th birthday celebration 65 per cent liable for injuries suffered by one of the guests under the province’s Occupiers’ Liability Act.

The 2007 party took place in the backyard of the defendants’ property, where the plaintiff fell as she attempted to step up onto the deck. The parties agreed the level of damages for injuries to her wrist were worth around $30,000, but disputed liability.

“Occupiers are not insurers, which means they are not held to a standard of strict liability,” Vaughan, a partner at Benson Percival Brown LLP, tells “The trial judge seemed to say that the accident happened, and the owners were therefore liable, but it doesn’t work that way.”

Instead, Vaughan explains that the law sets out a four-step test for when occupiers can be liable.

It requires plaintiffs to show first that the defendant owed them a duty of care, and second, that it was breached. Thirdly, that breach must have caused the damages sustained by the plaintiff, and finally, that the damage was not too remote a consequence of the breach.

In the birthday party case, the judge’s analysis fell down on the second and third steps, Vaughan says.

“The judge didn’t analyze the standard of care and whether it was breached,” she says. “And if there’s no causal nexus between the breach and the fall, then there can’t be a liability finding.”

At the trial on liability, the judge found the hosts breached their duty of care by having a deck 13.5 inches off the ground, twice the standard height of steps in a residential home. But Justice Frances Kiteley, writing on behalf of the Divisional Court panel, found the height alone wasn’t enough to find a breach.

“Even assuming that the height of 13.5 inches created a risk of harm, the reasons for decision do not refer to any evidence and do not contain an analysis as to whether that created an objectively unreasonable risk of harm. The duty under the Occupiers’ Liability Act is not absolute and occupiers are not insurers liable for any damage suffered by persons entering the premises,” she wrote.

On causation, Kiteley said the judge failed to explain how the height of the deck contributed to the plaintiff’s fall.

”Had he turned his mind to causation, the Trial Judge would have had to consider findings he made elsewhere, namely: the respondent was walking; the step up to the deck was plain and obvious; the step up was significantly higher than the usual riser; it was daylight; and there appeared to be no issues of visibility. It would be difficult to move from those findings to a conclusion that the elevation of the deck caused the injury sustained by the respondent,” she wrote.

As a result, the judge’s liability finding against the homeowners was overturned. However, Vaughan says the decision shouldn’t be seen by party hosts as providing them immunity from lawsuits by guests.

“These cases are all very fact-specific, so it’s possible that liability could be found in similar situations. It’s just in this case that causation was not established,” she says. “Hosts should be looking at their property and making sure they’ve taken all reasonable steps to deal with any potential safety issues.”

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