Insurance

February 16, 2023 Published by Grand River Chapter - By David Outa

Slip, Trip and Falls; Whose Fault is it Anyway?!

We have all seen and heard the commercials, ‘Hurt in a slip and fall? Call 555-555-5555 now! Our All Star team of lawyers are waiting to get you the compensation you deserve!’ Typically these advertisements run during prime time TV show times in the evenings or on your favorite radio station as you drive to and from work.

We have all seen and heard the commercials, ‘Hurt in a slip and fall? Call 555-555-5555 now! Our All Star team of lawyers are waiting to get you the compensation you deserve!’ Typically these advertisements run during prime time TV show times in the evenings or on your favorite radio station as you drive to and from work. It should come as no surprise. According to the Canadian Institute for Health Information, unintentional falls from slipping, tripping, stumbling and other related causes accounted for 45% of all injury hospitalizations in Canada between 2017 and 2018. By contrast, injury hospitalizations attributed to automobiles including injuries to cyclists and pedestrians accounted for just 8% during the same period. Canadian Institute for Health Information. Slips, trips and falls: Our newest data reveals causes of injury hospitalizations and ER visits in Canada [story]. Accessed February 9, 2023.

As Occupier of the Common Elements, the legal responsibility for ensuring that the common areas of a condominium corporation are free of hazards that could result in slip, trip and fall injuries lies squarely with the condominium corporation. People are often surprised to discover that you owe a duty of care to everyone who enters your premises, including trespassers, although the duty of care owed to a trespasser is lower than that owed to an invitee.  You may not, for example lay traps to intentionally maim those pesky neighborhood kids who turn your snow piles into a slide, lest you be found negligent. It is important to ensure that all reasonable measures are taken to reduce the chance of a third party sustaining an injury on your premises.  Failure to do this may result in a court awarding judgements including monetary compensation for pain and suffering to others should they sustain an injury on the condominium premises. Some examples of hazards typical to residential premises include wet floors, uneven and damaged walkways and icy parking lots and sidewalks. Poor lighting can also contribute a trip and fall injury.

In my role as an insurance broker, I often get calls asking who is negligent as soon as a slip, trip and fall claimant serves the corporation with a lawyer’s letter or formal statement of claim. My standard response is usually a rhetorical question about whether the caller and the corporation feel that they were responsible. The fact of the matter is that negligence is a standard that is determined by a court of law and generally refers to failure to exercise an appropriate level of care that would be reasonably expected or acting in a manner that a reasonable and prudent person would not. Should an injury occur as a result of either action or inaction, expect a level of negligence and monetary compensation to be awarded. For example, if the condominium property management and board are repeatedly notified of a loose step at the front entrance over a period of many weeks with no action taken, should an injury eventually occur, it can be reasonable expected that the property management and board would be found negligent should an injury leading to a lawsuit occur.

Not all situations are straightforward. Winter weather wreaks havoc on condominiums every year. Despite everyone’s best efforts, slip and fall accidents are common and lead to lawsuits against condominium corporations, property management firms and the contractors hired to manage snow and ice. Third parties often contribute to their own injuries by not wearing appropriate footwear, engaging in dangerous acts, or ignoring warning signs. Negligence can be effectively reduced, eliminated or transferred by implementing common sense risk management strategies. These include contracting with a reputable, insured snow removal contractor to clear snow and ice from walkways and parking lots. A good contractor will include logs with dates, times and prevailing conditions of when they attend the site. A condominium corporation can also implement a process whereby any signs of or reports of hazardous conditions are recorded and dealt with as quickly as possible. Signs warning of dangerous conditions and hazards that cannot be reasonably and quickly eliminated is another example of good risk management.

Good risk management may not eliminate the chance of a lawsuit, but it goes a long way to reduce the potential for injuries and financial awards due to findings of negligence against condominium corporations.

David Outa BA, CIP, CRM 
Commercial Account Executive, Condominium Practice Lead
Cowan Insurance Group