Premise liability refers to the responsibility of property owners to keep premises safe for visitors in accordance with BC’s Occupiers’ Liability Act (OLA). When someone legally enters a property, the risks to their health and safety must be kept to a minimum. It is primarily the property owner who is responsible for the proper care and maintenance of the property.
Property owners who fail in their essential duty of care to negate risks can be held liable in a court of law and be required to pay damages to those they harmed. It is possible to seek compensation for medical expenses, lost income, and damaged property. Proving premises liability involves finding evidence of a property hazard, linking it causally to your injuries, demonstrating the property owner failed to control the risks the hazard posed, and securing documents detailing the events that led to your injuries.
How Do You Prove Premises Liability?
Negligence is the defining aspect of legal liability for property owners. It involves the failure to exercise reasonable care or take action in a way that a reasonable person would under similar circumstances. Proving a property owner acted irresponsibly in failing to properly maintain a property and prevent harm to visitors involves demonstrating negligence as defined by BC law.
Establishing Duty of Care
Property owners are negligent when they violate their duty of care. Those with a duty of care have a legal obligation to provide safe, hazard-free premises as property owners. By violating that duty of care, the owner or operator has taken an unnecessary risk by encouraging or ignoring ongoing risks to visitor well-being. A lease, deed, or other purchasing record establishes the owner or primary operator and therefore denotes duty of care.
Breaching Duty of Care
Breaching duty of care can concern one of the following aspects of property ownership and management. An owner’s duty to visitors includes:
- Conditions on the premises, including parking lots, sidewalks, and attached spaces not currently in use
- Activities being conducted on the premises
- The conduct of third-parties operating on a premises
Owners and operators are responsible for maintaining safe premises. Owners must ensure appropriate management of the day-to-day operations conducted on the premises as well as the long term building maintenance. This can involve meeting building code requirements, and making sure those renting a property (including lessees and contractors) adhere to basic safety standards.
Establishing Negligence Causing Injury
Negligence is a necessary component of proving a premises liability case and can involve a range of owner misconduct. In other words, it doesn’t matter how dangerous situations arise. Whether it’s due to owner action or inaction, owners can be held liable for their failure to protect the public. Establishing negligence in court requires demonstrating that owners were careless, reckless, and perhaps engaged in impropriety leading to a dangerous situation.
Dangerous premises often result from the following circumstances:
- Failure to adhere to BC or federal building codes
- Failure to perform basic ongoing building maintenance
- Failure to keep sidewalks, stairs, and walkways clear of objects, debris, or weather related dangers
- Failure to perform basic cleaning or mark wet floors
- Failure to properly secure and warn visitors of hazards like electrical cords, unsecured furniture, and harmful chemicals
- Failure to secure or replace handrails
- Failure to secure animals such as dogs
- Failure to post adequate signage
Whether an individual has permission to enter a property depends on their reason for doing so. Their status as a visitor significantly impacts premises liability cases. Person status is categorized into four legal classifications.
1.Those with Implied Permission to Enter
Properties such as grocery stores fulfilling a necessary public service are said to have provided general members of the public with implicit or unstated permission to enter the premises. These visitors must use the property for its intended legal purpose to maintain coverage under the OLA. In this situation, a higher standard of duty of care is applied, as these organizations are required to proactively maintain a safe and hazard-free environment for patrons to enter. Wet floor sign requirements and mandates to warn the public of hazards like the presence of a dog reflect this high standard.
2. Those with Explicit Permission to Enter
The law requires that certain individuals have permission to enter a premises. For example, family and friends you invite to your home can have permission to enter. Someone who has a business purpose may need to receive explicit permission to enter and is otherwise trespassing without it. A salesperson showing up to a property unannounced may not be covered under the OLA the same way they would be if they were expressly invited.
3. Those with a Legal Right to Enter
Those with a right to enter a premises do not require implied or explicit permission. These include authorities such as constables, emergency personnel, and building inspectors.
Whether someone who is trespassing on the property in question is covered under the OLA depends on the situation. Generally, those who are trespassing are present without the owner’s permission; therefore duty of care does not apply.
There are notable exceptions to this rule. The first involves minor children who visit a property due to an “attractive nuisance.” Attractive nuisances are dangerous conditions that an owner is required to know about and remedy because they tend to attract minors to the property. This could include an abandoned property used as a gathering place for teens or an unguarded swimming pool illegally accessed at night. In this case, owners can be required to anticipate these risks and be held accountable when an appropriate level of hazard reduction isn’t met. In the swimming pool example, this could mean adding or repairing a fence meant to prevent illicit pool access.
In regard to adult trespassers entering a property illegally, an owner’s duty of care is minimal and only requires avoiding the deliberate creation of a hazard or a reckless disregard for a trespasser’s safety by owners.
Evidence Used to Prove Premise Liability
It is important to capture multiple images of the hazard responsible for dangerous premises. Do so as soon as possible after an incident to accurately depict the hazard on the day of the accident. If your injuries prevent you from doing so, ask a loved one to do it for you.
For the safety of visitors, and the protection of owners, some BC properties may have cameras operating on their property. You or your lawyer can request copies of the applicable footage.
Property Agreements and Leases
While establishing a building’s owner is often relatively straightforward and simply requires a title or deed to a property, establishing a contractor or lessee with a duty of care can be more difficult. While it can be clear that a hazard was present and caused a victim’s injuries, determining responsibility for the hazard can be less so. Laws established under the OLA require a duty of care from an organization leasing a space from a property owner. The specific details of the lease agreement can also make the lessee responsible for additional hazard avoidance and management tasks not explicitly mandated by the OLA.
If possible, have a manager, supervisor, or some other person of authority associated with a property complete an incident report of what happened when you were hurt. These individuals are required to report the events accurately to the best of their knowledge. Victims of hazardous premises should not admit wrongdoing or make accusations when completing an incident report. Stick to the facts of the events leading up to, including, and immediately following the incident. Collect this individual’s contact information and ask for a copy of their report.
Eyewitnesses can significantly contribute to establishing the circumstances leading to your injury and how it occurred. If possible, collect the names and contact details of anyone who witnessed the incident.
When determining the causes and extent of injuries, your lawyer will ask for access to your medical records documenting your health status, medical treatment, and current prognosis. Personal injury lawyers working premise liability cases will work with your doctor to clarify aspects of your health status and may call them as a witness in any premises liability case.
When calculating the damages a dangerous premises victim is owed in a successful civil case, income records are needed to determine the income lost due to injury and inability to work.