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Municipalities and Occupiers Liability: Principles and Preventative Practices

Municipalities and Occupiers Liability: Principles and Preventative Practices. James H. Goulden of Bull Housser. April 12, 2012. Occupiers Liability - Principles. Statutory duty of care for persons in control of property

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Municipalities and Occupiers Liability: Principles and Preventative Practices

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  1. Municipalities and Occupiers Liability:Principles and Preventative Practices James H. Goulden of Bull Housser April 12, 2012

  2. Occupiers Liability - Principles • Statutory duty of care for persons in control of property • Must take reasonable steps to prevent damage to persons or their property • Duty is to ensure premises is “reasonably safe” for those using it 2

  3. General Principles • Public law principles of negligence apply to occupiers liability claims against municipalities • Limited immunity for pure “policy” decisions • “Operational” decisions may attract liability • Documentation of policy execution critical 3

  4. Who is an “Occupier”? • Section 1: any person who has responsibility for, and control over: (i) the condition of the premises; (ii) the activities conducted on the premises; and (iii) the persons allowed to enter those premises • May be more than one occupier 4

  5. What are “Premises”? • Defined in s. 1 of the Act to include lands and structures, including portable structures such as trailers used for residence, business or shelter • Applies to not only structures on land, but to water and movable structures including ships, trains and streetcars 5

  6. When does the Duty Apply? • Duty concerns both safety of the visitor and any property brought onto premises • Applies to “activities” conducted on premises that result in injury, damage 6

  7. Damage caused by Chattels • Case law inconsistent on damage caused by chattels or moveable property: • No statutory duty in case of collapsed chair in bingo hall • No duty when plaintiff fell from ladder when repairing friend’s roof • But duty held to apply when Wal-Mart employee fell from a ladder 7

  8. Actions of Third Parties • Occupier liable for actions of third parties lawfully present on premises • Liability established if occupier knew or ought to have known third party posed danger • Example: Jacobson v. Kinsmen Club, 1976 BCJ No. 343, plaintiff injured by drunken patron climbing on cross beams at beer garden 8

  9. Scope of Liability • Standard of care is reasonableness, not perfection • Occupier is not an insurer • No presumption of liability when an accident happens • Section 3: occupier must take reasonable care to ensure that those using the premises are reasonably safe 9

  10. Duddle v. Vernon, 2004 BCCA 390 • Plaintiff was rendered a quadriplegic when he dove into shallow water from the City’s pier at Kalamalka Lake • City had placed numerous signs prohibiting diving and warning of the shallow water • Plaintiff had used the pier and swam in the area numerous times in the past 10

  11. Duddle v. Vernon... • Plaintiff argued that there were further steps the City could have taken – e.g. signs could indicate actual water depth, guardrails could be installed • Court found that City was not required “to do all they could have done” to prevent the accident • City had taken reasonable care • In addition, City could not be held liable for failing to warn the Plaintiff of dangers of which he was already aware 11

  12. Prior History of Premises • Previous safe usage or a history of accidents is relevant to standard of care • Damages must be reasonably foreseeable for liability • No liability for unforeseeable incidents 12

  13. Prior History of Premises • Vital to have documentation • Eg. In Geraghty v. Port Coquitlam (City), 2005 BCJ No. 495, Plaintiff was injured in municipal swimming pool • Two lifeguards testified they had never witness a collision before • Court gave little weight to this evidence because the City had not maintained any records of accidents, safety violations, etc. 13

  14. Prior History of Premises • Liability may still be imposed if occupier has untarnished safety record • E.g. Bilawchuk v. Prince George, 1998 BCJ No. 2934, hockey player injured wrist on boards • Court determined that the fact that a similar accident had not occurred was “a reflection of chance, not good management” 14

  15. History of Past Incidents • Past incidents do not mean occupier is presently liable • Eg. Redman v. Saanich, 2004 BCJ No. 2196 – Plaintiff was injured when exercise ball he was using burst • Balls had burst or malfunctioned on three prior occasions at other facilities and Saanich facility was likely aware • Court still found the standard of care was met: inspection policy followed, balls properly stored, etc. 15

  16. Inspection, Maintenance Policies • Decisions by government bodies constrained by many factors • Policy decisions reflect budgetary considerations involving allocation of resources • Local governments generally not liable where it follows such policies • Unless the policy is unreasonable in light of all the circumstances 16

  17. Inspection, Maintenance Policies • Municipalities must prove their policy was carried out • E.g. Ross v. Vernon, 2009 BCSC 1378 • Plaintiff slipped, fell and was injured on walkway in municipal park • City employed contractor to take care of maintenance 17

  18. Ross v. Vernon... • Walkway encircled a pond inhabited by wild ducks and geese • Plaintiff slipped on bird droppings • No liability • Inspection and maintenance policies were reasonable • Court found the person responsible for maintenance was credible and believed his testimony that he had washed the walkway earlier that day 18

  19. Willing Assumption of Risk, Contributory Negligence • Section 3(3): Where risks willingly assumed, lower standard applies • Occupier must not: • Create a danger with an intent to harm • Act with reckless disregard to the safety of others • Damages may be reduced due by contributory negligence by plaintiff 19

  20. Willing Assumption of Risk, Contributory Negligence • Amerato v. Nanaimo (City), 2006 BCSC 1771 • Plaintiff suffered injury while roller-skating in municipal arena • Fell when roller skate came into contact with Skittles candy that had been dropped • Evidence was that Plaintiff was aware there were Skittles on the ground • Court found Plaintiff was negligent in exposing herself to danger 20

  21. Warning Signs • Important to have signage marking any hazards • E.g. In Duddle v. Vernon, the City had posted signs prohibiting diving and warning of shallow water • The Plaintiff argued that the City should have posted signs indicating the actual depth • Court decided City’s signs were reasonable 21

  22. Lovely v. Kamloops, 2009 BCSC 1359 • In Lovely v. Kamloops, plaintiff fell 8 feet from a transfer station platform while putting refuse in bin • The municipality had posted warning signs, but they were not posted on the transfer station platforms • Signs did not warn customers that there was a risk they could fall from platform to ground below • Liability apportioned 55% to City; 35% to designers of transfer station; and 10% to plaintiff 22

  23. Municipal Roads • Section 8 of the Act exempts municipalities from statutory duty of care for public roads • Municipalities may still be liable in negligence • Court will examine whether policy reasonable in the circumstances • including budgetary considerations 23

  24. Aberdeen v. Township of Langley et al.,2008 BCCA 420 • Plaintiff was seriously injured while cycling on a municipal road • Road was a designated bicycle route • The Plaintiff was forced onto the shoulder by an oncoming vehicle, struck a guardrail and was propelled through a gap and down an embankment • Court found City owed a duty of care that the roadways were reasonably safe for the purposes of travel 24

  25. Aberdeen v. Township of Langley • In this case, Langley could not rely on line of cases limiting municipality’s liability when there were reasonable inspection and maintenance policies in place • Those cases deal with hazards created by others, or by weather, or by wear and tear • In this case, the municipality had created the hazard (the gap) 25

  26. Sidewalks • The Occupiers Liability Act applies to sidewalks • Courts will still consider whether there was a reasonable policy in place that was followed • E.g. Beadle v. Nanaimo 2009 BCSC 1506 - plaintiff tripped over uneven pavement • City had policy of sidewalk inspection in place • Court concluded policy was result of “manpower constraints”, liability not imposed 26

  27. Sidewalks • Local governments must promptly respond to known problem areas: Garcha v. New Westminster, 2005 BCJ No. 1922 • Slip and fall incident occurred on a street that was 4th highest priority for ice removal • However, City knew of drainage issues in the area, melted ice there before • City liable 27

  28. Sidewalks • In Knodell v. New Westminster, 2005 BCJ No. 2026, the same municipality escaped liability for a slip and fall • Ice formed on sidewalk due to water from overhead Skytrain guideway • No evidence that the City knew about the ice or that it was a problem area • City therefore not liable 28

  29. Recreational Trails • Section 3 of the Act provides a lower standard of care for recreational trails • Trail users accept certain inherent risks • Liability will only be imposed if the occupier: • (ii) creates a danger with an intent to harm; or • (ii) acts with reckless disregard for others’ safety 29

  30. Recreational Trails • Occupiers of recreational trials are responsible to conduct repairs and take reasonable care • But lower standard means occupier must only act if failure to do so will likely result in harm • Appropriate warning signage should be posted as necessary 30

  31. Ferris v. Greater Vancouver, 2002 BCSC 215 • Plaintiff fell and was injured while rollerblading in Seymour Demonstration Forest • Would have required a “standard of perfection” to expect road would be completely free of gravel and small rocks • No hidden or unusual dangers • Warning signs posted • No liability either in negligence or under Occupier’s Liability Act 31

  32. Exclusion of Liability • Section 4 of the Act codifies the common law right of owners or occupiers of property to “contract out” of liabilities • Indemnities, exclusion clauses and/or waivers should be included in local governments’ contracts with third parties over civic property 32

  33. Exclusion of Liability • Special care must be taken to draw the other party’s attention to such clauses • To rely on an indemnity or hold-harmless clause, defendant’s negligence cannot be proximate cause of damage • Licensing and lease agreements should give tenant responsibility / control over premises 33

  34. Overview of Precautionary Practices • 1) Establish policies for inspection / maintenance with specific criteria • 2) Conduct inspections in systematic way • 3) Policies should reflect budgetary, economic and other considerations • e.g. availability of equipment / personnel • 4) Employees should follow policies closely 34

  35. Overview of Precautionary Practices • 5) Accidents and safety concerns should be recorded, along with action taken in response • 6) Organized records on the execution of all policies should be kept • all inspections, repairs and related activities • 7) Where City learns of a specific danger, respond promptly 35

  36. Overview of Precautionary Practices • 8) Post well-positioned and clear signs warning of hazards • and associated prohibitions, regulations, etc. • 9) In contracts, other parties should assume control over property where possible • 10) Include indemnities, releases and/or waivers in municipal property contracts 36

  37. Conclusion • The broad scope of liability for municipalities poses significant challenges • To minimize liabilities, municipalities must: • Understand statutory and common law duties; and • Implement proactive practices aimed at reducing exposure to risk 37

  38. ISSUES IN FINANCE Presented By: Kathleen Higgins April 12, 2012

  39. OVERVIEW (1) Borrowing & liabilities (2) Limits on providing assistance to business (3) Publication of intention to provide certain kinds of assistance to a person or organization

  40. (1) BORROWING & LIABILITIES

  41. INTRODUCTION • Municipalities are subject to significant limitations as regards their authority to borrow and incur liabilities • These limitations are set out in: • The Community Charter (the “Charter”); • The Municipal Liabilities Regulation (the “MLR”); and • The Approval of the Electors Exemption Regulation • Regional districts are also subject to limitations as regards their authority to borrow and incur liabilities • These limitations are set out in the Local Government Act (the “LGA”)

  42. LIMIT ON BORROWING AND OTHER LIABILITIES • A municipality may only incur liability as expressly authorized under the Charter or another Act • A municipality may not incur a liability if incurring the liability would cause the limit to exceed a limit established by regulation unless it is approved by the Inspector of Municipalities

  43. LIABILITIES

  44. LIABILITIES UNDER AGREEMENTS • A municipality or regional district may incur a liability under an agreement if: • The liability is not a debenture debt; and • The period of the liability is not longer than the reasonable life expectancy of the activity, work or service under the agreement

  45. LIABILITIES UNDER AGREEMENTS • If an agreement is for more than 5 years or for a period that could exceed 5 years by exercising rights of renewal or extension, the municipality or regional district may only incur liability with the approval of the electors • The matter put before the electors must identify: • The parties to the agreement; • The nature of the liability; • The term of the liability; and • The amount of the liability

  46. LIABILITIES UNDER AGREEMENTS • Approval of the electors is not required if one of the following is true: • The liability is incurred under an employment contract or collective agreement; • The liability is incurred for the supply of materials, equipment or services under an agreement referred to in s.3 of the Police Act;

  47. LIABILITIES UNDER AGREEMENTS • If the concept for the partnering agreement which contains the liability has been approved by the electors within the 5 year period prior to the date of the agreement and the agreement is in accordance with that concept • Under s. 175(6), the identity of the partner need not be known or disclosed as part of the partnering concept, only the nature of the activity, work or facility, the maximum term, the maximum liability incurred under the agreement and any other information required by regulation

  48. LIABILITIES UNDER AGREEMENTS • The liability forms part of a long-term agreement under which a municipality or regional district acquires an interest or right in or with respect to land and the liability is: • an obligation that the municipality or regional district maintain the land; and/or • an obligation that the municipality or regional district indemnify the grantor of the interest or right being acquired by the municipality or regional district, as the case may be.

  49. LIABILITIES UNDER AGREEMENTS • The liability is not of a “capital nature” (whether or not it is or includes a contingent commitment); • The liability is not a loan guarantee given by a municipality; • At the time the municipality proposes to incur the liability: • the annual cost of servicing the aggregate liabilities of the municipality for the year does not exceed 5% of the annual calculation revenue of the municipality for the previous year; and • incurring the liability would not cause the annual cost of servicing the aggregate liabilities of the municipality to exceed 5% of the annual calculation revenue of the municipality for the previous year (note: the above is sometimes known as the “approval-free liability zone”)

  50. LIABILITIES UNDER AGREEMENTS • The liability is to be incurred for the purpose of complying with an order of a drinking water officer under the Drinking Water Protection Act that expressly requires the municipality to install treatment works and the inspector of municipalities approves the proposed liability; • The liability is to be incurred for the purpose of: • preparing or revising, under the direction of the minister under section 24(3)(a) of the Environmental Management Act, a waste management plan respecting the management of municipal liquid waste; or • implementing all or part of, or an amendment to, a waste management plan approved by the minister under section 24(5) of the Environmental Management Act respecting the management of municipal liquid waste; and the Inspector of Municipalities approves the proposed liability.

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