Is the homeowner responsible for an accident on his property?

Q. Someone slipped and fell on my driveway during the winter and I don’t have home insurance. Should I be worried?
– Ray

A. This situation comes across my desk more than you might think. People find themselves without home insurance for a range of reasons; sometimes an invoice or policy renewal has gone unnoticed; or it fell through the cracks during the course of a marriage breakup. It happens.

Although this won’t erase the accident that happened on your property, one of the first things you should do is to get valid home insurance. If you own your home and have a mortgage on the property, the terms of your mortgage likely require you to have valid home insurance. Not having it will probably put you in violation of those terms.

Bringing your home insurance up-to-date will keep your mortgage in good standing, as well as protect you against future losses—from slip-and-fall claims or otherwise. If a claim is made against you, the cost could range anywhere from a few thousand dollars to well into the six figures. While there is a cap on general damages in Canada of approximately $370,000, it’s important to understand that the total damages awarded in a case include general damages plus compensation for other losses like lost income due to an injury, which is often the largest component of the damages award.

Ray, you’ve asked if you should be worried. In a case like this, the first thing I would want to know is whether this person was hurt and, if so, what how serious is the injury?

There are two aspects to a lawsuit related to a fall on a driveway caused by the buildup of snow or ice. We call these damages and liabilities.

The damages analysis is about putting a monetary value on the injury. To put it simply, we look at the dollar value of the pain and suffering associated with the injury (we call this “general damages”) and the amount of money that the injury will cost the plaintiff as a result of missing work, having to pay for medical care or having to pay for other things as direct result of the injury (we call this “special damages”).

I would start by asking how badly injured is this person because that will give us a sense of whether you should expect to be sued or not. No matter how slippery your driveway was, if someone fell but it turns out that they are just fine, there are no damages and it does not make any sense to sue you.

On the contrary, if the answer was that they were seriously injured, we would move on to discuss liability, because dealing with a lawsuit might be in the cards for you.

If the seriousness of the injury is somewhere in between, it may or may not be worth pursuing as a lawsuit. However, I will also add that in Ontario, generally speaking, the person who fell on your driveway would have two years to start a lawsuit against you so just because you haven’t heard anything for a while does not mean that it has gone away. If more than two years have passed, the person who fell would have missed this deadline and would need to get permission from a judge to start their lawsuit. This type of permission is granted from time to time but a judge would require a fairly good reason why the lawsuit was not started before the two-year deadline.

Now, let’s discuss the liabilities aspect of a lawsuit. For lack of a better word, liability is like fault.

In a case like this, where winter conditions on a driveway are thought to have contributed to a slip and fall, the defendant has an obligation to make reasonable efforts to keep the surface safe. It is important to understand that reasonable efforts mean exactly that. The obligation is not to keep the driveway completely free of ice or snow to a standard of perfection; that simply isn’t going to happen.

Whether the efforts of the defendant meet the standard of being reasonable is often a big part of the debate in this type of case. I don’t have a specific formula to tell you whether liability will be established for the fall in your driveway. We look at things like how often did you maintain your driveway, when were you last out there maintaining your driveway before the fall, what were the weather conditions at the time of the fall, what were the weather conditions leading up to the time of the fall, did your efforts include shovelling and applying salt, sand or ice-melting products, or just shovelling.

In addition, we would look at whether anyone other than you should be held responsible for the fall.

If you pay a snow removal company to maintain your driveway, or rent the home, or have a driveway that is a common element of a condominium corporation, you might be able to deflect this in whole or in part onto another defendant. In some cases, all of the above defendants are involved. Practically speaking, a situation with several defendants will turn into a debate between the defendants as to which of them is really responsible. But these cases often settle based on an agreement between the co-defendants as to the share that each will contribute to the damages awarded to the plaintiff.

If the other defendants have insurance, the uninsured homeowner might be able to make a deal to contribute a reduced amount to the shared total.

Responsibility for the fall may also rest with the plaintiff themselves: We call this contributory negligence. Simply put, if the plaintiff did something that they knew, or should have known, was likely to cause them to fall and injure themselves, they will be allocated some of the responsibility for the fall and for their injuries. This is normally expressed as a percentage. For example, if the plaintiff was found to have 20% contributory negligence, the defendants would only have 80% responsibility for the injuries sustained in the fall. In terms of calculating damages, that means the defendants would only have to pay 80% of the damages rather than 100%.

Some examples of things that would attract contributory negligence in a slip-and-fall case related to ice or snow include being impaired by drugs or alcohol, and wearing footwear inappropriate to the season, like running shoes or high heels.

Finally, in a case like this the result in terms of liability is often a question of evidence and what each side can prove. Remember that the judge or jury making the decision wasn’t there when the fall happened. Their decision is based on what they believe happened, which is based on the evidence provided to them. If a defendant can provide clear and detailed logs indicating that they shovelled and salted the surface on a frequent basis including right before the fall or pictures showing that the surface was properly maintained at the time of the fall, it will help the judge or jury come to the conclusion that reasonable efforts were made. On the contrary, if the defendant does not have any pictures or any records of what they did, and can’t remember what they did to maintain the driveway, a judge or jury is less likely to conclude that reasonable efforts were made.

Circling back to your question—should you be concerned about this fall and the lack of home insurance?—give some thought to whether they are seriously injured, whether you are really the one responsible for maintaining the driveway, and what you had been doing and when in terms of winter maintenance around that time.

Scott Hawryliw is a civil litigation lawyer with SRH Litigation in Barrie, Ont. He helps clients with legal problems related to injuries, employment, and business issues and can be reached at [email protected]

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