Premise liability refers to the responsibility of property owners to keep premises safe for visitors per BC’s Occupiers’ Liability Act (OLA). When someone legally enters a property, they are entitled to minimal health and safety risks. Both public and private property owners are responsible for taking reasonable steps to tend to and maintain their property, which is referred to as a duty of care.
Property owners who fail in their 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, damaged property, and pain and suffering. Proving premises liability involves finding and documenting evidence of a property hazard, demonstrating a property hazard caused your injuries, and ultimately showing the property owner failed to control risks and allowed the hazard to exist.
How Do You Prove Negligence in Premise Liability Cases?
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 public or private property owners acted irresponsibly in failing to maintain premises and prevent harm to visitors properly involves demonstrating negligence as defined by BC law.
Establishing Duty of Care
Property owners are deemed negligent when they violate their duty of care. Those with a duty of care are legally obligated 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 failing to mitigate potential hazards, thus creating a potentially dangerous premise for visitors. 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 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 and the long-term building maintenance. This can involve meeting building code requirements and ensuring those renting a property—including lessees and contractors—adhere to basic safety standards. Whether a hazard is due to owner action or inaction, owners can be held liable for their failure to protect people on the property. 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, such as pool safety
Victim Status
A person’s status as a visitor significantly impacts premises liability cases. These statuses are categorized into four legal classifications.
1. Those with Implied Permission to Enter
Properties such as grocery stores fulfill a necessary public service. Therefore, people have implicit or unstated permission to enter these premises. Visitors must use these properties for their intended purpose to maintain protection by the OLA. A higher standard of duty of care is generally applied, as these properties 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 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.
4. Trespassers
Whether or not a trespasser is covered under the OLA depends on the situation. Generally, those trespassing are present without the owner’s permission; therefore, duty of care does not apply.
One notable exception to this rule involves minor children who visit a property due to an “attractive nuisance.” Attractive nuisances are dangerous conditions that 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.
Regarding 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.
Evidence Used to Prove Premise Liability
Photographs
It is important to capture multiple images of the hazard responsible for dangerous premises. Do so immediately 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.
Video Recordings
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.
Accident Reports
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 the property manager’s contact information and ask for a copy of their report.
Witnesses
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.
Medical Records
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 witnesses in your premises liability case.
Income Records
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.