Families are gathering at the cottage. Restaurants and bars are reopening. People are getting out and enjoying themselves again. With vaccination rates exploding across Ontario, it’s starting to feel like the pandemic is behind us.
Lawyer Ian Stauffer, Partner at Tierney Stauffer LLP warns that while the risk of contracting COVID-19 is diminishing, with more activity there’s an increased risk of accidents and injuries.
Pre-pandemic life is returning. Just look at the weekend traffic jams heading into cottage country. One of the first things you should do is ensure you have insurance coverage for your property. Stauffer said, “If you don’t, then you run a real risk of personal liability.”
A loose board could send someone tumbling down the stairs or tripping over a hidden tree stump could result in a broken leg.
Stauffer said, “You want to have at least a million dollars coverage, my advice would be to have two million.”
The law requires owners to keep their property reasonably safe. Even if people are using your cottage for free, you’ve got to make sure the property is as safe as it can be. Fill in those hidden holes and clear away that barbed wire.
The cottage owner does not have absolute liability.
The flip side is what’s known as Contributory Negligence.
If an injured person is in any way at fault, that could reduce the cottage owner’s liability. For example, if the injured person was reckless by jumping off a roof into a swimming pool, that could be seen as contributory negligence.
But, if the property owner has a cavalier attitude and says they should have seen that loose board, then they could be negligent for not warning of the hazard.
Understandably, you can’t keep a place 100% accident free.
Make sure you have property insurance and make sure it has not lapsed. Stauffer said, “That’s a problem, because if you do not have a viable insurance policy then the insurer will deny the claim.”
If you’re renting to strangers, ensure the insurance coverage is sufficient. Children on the property can be very costly. A badly injured 5-year-old could easily result in claim over a million dollars. If you have a $5 million claim and only $2 million in coverage, the insurance company will not pay the difference.
Another example is an 18-year-old, straight A student, destined to be a doctor, who then suffers a traumatic brain injury after diving into the water and hitting their head on a rock. The lifetime loss of income would be significant.
Diving accidents in the summer are common. Stauffer said if the teen was injured hitting their head on a log that drifted into shore and the property owner was not aware of that, there would likely be no liability. It all comes down to reasonableness and in this case has there been a reasonable, continual inspection of the property.
However, if the property owner knew there was an old stump underwater in a swimming area, then there is a real liability risk to the homeowner,
Stauffer advised, “The more you know about a risk and don’t mention it, the greater the chance you’re going to be found liable. The more dangerous a situation, the more obligation there is to advise others to be careful.”
What happens if the cottage visitors want to go for a boat ride? Just like a car owner, the boat owner is responsible for that vessel and anything that happens on it.
If an occupant is hurt, then the boat owner is responsible. Again, contributory negligence applies to the person injured. Drinking is prohibited while the boat is in operation and the boat owner is responsible, even if they’re not operating it.
Boating can be dangerous. Each year, about a third of drownings involve boating. Eighty percent of drowning victims are not wearing life jackets. A boat owner must ensure everyone on board is wearing a life jacket.
What if the boat owner isn’t even there?
Stauffer stressed, “As long as the boat owner has given consent to the operator, then they are just as responsible for what has happened as if they were on the boat.”
In Ontario, it is mandatory to have liability insurance for your boat. Ian Stauffer said people should look at their policy. The extra premium is worth it.
Drinking and driving is another huge liability hazard, particularly for bar owners. Lawyers for injured individuals will sue the driver and/or owner of the at-fault vehicle and the bar owner. If the server can be identified they would also be named in the lawsuit.
Stauffer said the courts have been clear, “It is a negligent act for a bar to know that they have over-served someone to the point where that person is a danger and should not be operating a motor vehicle.”
Again, let’s take the case of a traumatically injured 18-year-old destined for medical school. The costs of economic loss and future care could run into the millions of dollars.
So, this is a warning to people who may want to throw caution to the wind this summer as the economy opens up. Ian Stauffer wants to issue this caveat, take reasonable care and cover yourself with liability insurance.
If you have questions about risks and liability please visit www.tslawyers.ca.