3/9/2022 140

A Tale of Two Slip and Falls


Introduction
Slip and falls are a common occurrence and can result in serious injuries, especially in Canada where ice and snow cover the ground for three months of the year. The holiday season in late December sees an increase in parties and social gatherings, while at the same time, an increase in the likelihood of icy and snowy weather. Under these circumstances, accidents are waiting to happen.
This is a tale of two slip and fall accidents that ended quite differently. On one particular evening, two individuals—Mrs. Yes and Mrs. No—both attended separate holiday parties. Unfortunately, both of them would suffer severe injuries after slipping and falling on icy surfaces. However, one of the two victims would be successful in bringing a liability claim for damages, while the other would be unsuccessful. Here are their stories…

Mrs. Yes
Mrs. Yes was attending a party at a friend’s house. After having enjoyed a long night of celebration, Mrs. Yes decided that it was time to go home. She said farewell to her friends, thanked the hosts for a great evening, and departed. Over the course of the party, the weather had changed significantly. Freezing rain had fallen midway through the evening and temperatures dropped drastically, creating icy conditions on the roads, including the host’s driveway.
After stepping outside the house, Mrs. Yes recognized the cold conditions and tried to locate a safe and clear path for her to use. However, the only available route was down the driveway. She proceeded down the driveway, walking slowly and carefully, towards the sidewalk. But before reaching the end of the driveway, Mrs. Yes slipped on an icy portion of the ground and severely injured her leg. A nearby neighbor noticed her fall and came to her assistance.

Mrs. No
Meanwhile, in another part of town, Mrs. No was also attending a party at a friend’s house when she noticed how late it had gotten. She said farewell to her friends, thanked the hosts for a great evening and proceeded to the door. The host walked her to the front door and cautioned her about the weather. Several hours prior, the host noticed that the weather had changed to freezing rain and monitored the sudden drop in temperature. Seeing as the host had several people at her home, she left the party twice throughout the evening and salted the driveway and walkway in anticipation of the icy conditions.
Mrs. No thanked the host for the warning but assured her that she would be ok. The host recommended that Mrs. No use the walkway at the side of the house because the walkway had been shovelled recently and salted, while the driveway, although salted, had not been shovelled recently. Mrs. No informed the host that she was in a hurry to get home because of how late it was, and that she would simply use the driveway and walk carefully. After saying farewell to the host, Mrs. No proceeded down the driveway without taking caution as she walked. Midway down the driveway, Mrs. No slipped on an icy portion of the driveway and severely injured her leg. A nearby neighbor came to her assistance.
Both Mrs. Yes and Mrs. No suffered injuries that required physiotherapy and prevented them from working for several weeks. They both brought liability claims against the hosts for failing to ensure that the property was safe for guests. However, only Mrs. Yes was successful, while Mrs. No was unsuccessful. Here is a breakdown of why.

The Law
The Occupiers’ Liability Act applies to both these circumstances. According to this statute, an occupier has a duty to ensure that their property is kept reasonably safe for all people who enter. An occupier is anybody who owns or is responsible for a premises. Both hosts were occupiers of the property at the time of the accidents, therefore both hosts owed their guests a duty of care to ensure that the properties were safe.

The Occupier: Mrs. Yes
The host of the party that Mrs. Yes attended failed to ensure that the property was safe. In situations where icy conditions pose a risk of injury, it is required that an occupier make efforts to remove the dangerous conditions. Typically, salting or sanding an icy driveway will help to remove the risk. An occupier must also ensure that they provide enough salt or sand. If the occupier does not add enough salt or fails to salt the entire portion of ice, they may still face liability. In this case, the hosts did not salt the driveway at all, even though they knew guests would be using their property. For these reasons, they were held liable.
The hosts tried to argue that Mrs. Yes was partially responsible for her injuries. According to the law, if the victim behaves recklessly or willingly assumes the risk involved, they may be partly responsible and will only be able to collect a portion of the damages. In this case, Mrs. Yes was not reckless and did not willingly assume the risk for the following reasons:
[1] She was unable to see below the thin layer of snow, and was therefore unsure if the driveway was slippery;
[2] Because she was unsure of the conditions, she tried to locate a safer route, but none existed;
[3] She walked down the driveway as carefully and slowly as possible, in case there was ice below her; and
[4] Mrs. Yes was wearing heavy winter boots at the time, which is appropriate footwear for the circumstances.
The Occupier: Mrs. No
The hosts of the party that Mrs. No attended did their best to ensure that the property was safe and therefore were not held liable. The law tells us that occupiers must take reasonable steps to ensure that the property is reasonably safe. This means they are not required to remove every single possible risk, as this would be an unreasonable requirement. In this case, the host recognized the weather changes and salted the driveway and walkway twice throughout the night. Additionally, the host suggested that the guest use the safer alternate path that had been shovelled. These are reasonable steps to ensure that guests are safe while on the premises.
Furthermore, even if the host failed to take reasonable steps to ensure that the property was safe, the guest in this case would have been partially, if not entirely, responsible for her injuries for the following reasons:
[1] Mrs. No was warned of the weather conditions but did not make efforts to walk carefully;
[2] She was offered a safer route down the walkway but chose to use the driveway instead;
[3] She was in a hurry and was therefore acting recklessly with regards to the icy conditions; and
[4] She chose to wear high-heeled shoes that night, which posed a greater risk to her safety, given the difficulty in walking on ice in that particular footwear.  

(Optional third Guest – what do you think??)
Mr. Wrong Defendant
Mr. Wrong Defendant was attending the same party that Mrs. Yes was attending. However, Mr. Wrong Defendant left 30 minutes earlier. As he stepped outside of the house, he noticed the winter conditions and decided to walk carefully down the driveway. Unlike Mrs. Yes, he managed to reach the end of the driveway and stepped onto the sidewalk. He then took two steps and slipped on an icy portion of the sidewalk and fell, severely injuring his leg. A nearby neighbor saw him fall on the sidewalk and helped him.
Like Mrs. Yes, Mr. Wrong Defendant also sued the host of the party due to their failure to salt the driveway and provide a safe environment for their guests. Unfortunately for Mr. Wrong Defendant, the hosts were not found to be liable in this case because the victim did not slip and fall on their property. Because he fell on the sidewalk, the occupier was in fact the municipality and not the party host. Municipalities are responsible for ensuring the safety of certain public spaces, such as sidewalks, roads and parks. Mr. Wrong Defendant was suing the wrong occupier.  
Unfortunately for Mr. Wrong Defendant, it was too late to change his claim. But even if he correctly sued the municipality, it would have been much more difficult for him to succeed because municipalities are treated differently than residential hosts. Although it is reasonable for a resident to salt their driveway shortly after an ice storm (especially if they are hosting guests), it may not be reasonable for the municipality to salt every single sidewalk in the city shortly after an ice storm.


Conclusion
Even though these stories are quite similar, the differences between them can result in completely opposite outcomes. Both the guest and the host play key roles in deciding liability. The occupier of a property must take reasonable steps to ensure the environment is safe, while the guest must also act reasonably and do everything they can to avoid an injury.
Finding a balance between what is reasonable and what is unreasonable can be very difficult. If you are injured in a slip and fall accident, you should seek legal advice in order to determine the strength of your case and whether or not your tale will have a happy ending.