With the summer days upon us, nothing is more pleasant than a cool breeze to refresh us from Ottawa’s infamous humidity. However, when those cool breezes become stiff winds, damage and injury may result. On April 28, 2011, Ottawa experienced one such windy day. On this particular day, high winds caused power outages, fallen trees and other mayhem which wreaked havoc on roads and residences all over Ottawa. At least a dozen people were injured, some seriously, and some of these incidents may have been prevented with a little foresight.
Even though we can’t control the wind, as property owners, we are legally responsible to take reasonable steps to create a safe environment for others who may be in the wrong place at the wrong time.
Ontario’s Occupier’s Liability Act requires occupiers to take reasonable steps into making their premises safe. “Occupiers” include people in physical possession of premises and people responsible for the condition of premises or the activities carried on there. Therefore, the term occupiers would apply to both home owners and business owners. The definition of premises includes lands and / or structures, and would include homes, cottages, office buildings and other real property.
The general rule is that occupiers owe a duty to take reasonable care in all circumstances that people entering the premises, and the property brought on the premises by those people, are reasonably safe while there. This duty of care does not require us (as home owners or business owners) to remove every possibility of danger. The test is one of reasonableness, not perfection.
What is reasonable when Mother Nature creates a storm? What is considered to be reasonable in wind-cases is dependent upon the circumstances, which is why each case is decided based on its own unique set of facts.
For example, in the 2006 Ontario Superior Court of Justice case Goodhew v. Twin Hut, a large Pizza Hut sign detached from its frame during a wind storm and slammed through the windshield of the plaintiff’s parked car. The court ruled that the manager of Pizza Hut did not act reasonably in ensuring the safety of people on the premises. In particular, the court noted that the manager had experienced similar instances of detached signs before and ought to have known of the risk that it could separate on a windy day.
In the 2008 British Columbia Supreme Court case Wilde v. Cambie Malone Corp., the defendant restaurant had an outdoor patio area with large umbrellas. On a breezy day, the wind dislodged one of these umbrellas, which hit the plaintiff on the head. The court ruled that there was a foreseeable risk of harm as the wind gust in question was the type that the owners of the restaurant could reasonably expect, given the restaurant’s location by the water. Further, the defendant breached their duty of care to the plaintiff as the umbrellas were not properly secured and the restaurant did not have a policy in place requiring that the umbrellas be taken down on windy days.
Again, occupiers are only liable to take safety measure for winds that can be reasonably expected. The 1941 English case of Cushing v. Walker & Son helped to establish the test for when a defendant is to be excused from liability. In that case, the court noted that “the wind must not merely be exceptionally strong but must be of such exceptional strength that no one could be reasonably expected to anticipate such strength or proved against it”. In other words, the wind gusts must be of the type that could reasonably be expected in order to find any liability.
As we can see from these cases, there are proactive steps that occupiers can take to avoid damage, injury and liability. These steps include securing items on your property to ensure that they do not blow away in the case of strong wind, or removing and storing items that cannot be safely secured.
Occupiers do not have to guarantee safety but must take all reasonable steps in creating a safe environment. What is reasonable depends on an individual’s unique circumstances and therefore, one should consider examining and thoroughly securing his or her property.
Howard Yegendorf is a partner in the law firms of Howard Yegendorf & Associates LLP and BrazeauSeller.LLP. He practices personal injury law. He is certified by the Law Society of Upper Canada as a specialist in civil litigation and is also a Chartered Insurance Professional. To contact Howard, email or call 613-237-5000 ext. 233.
