Chapter 4 - Section 2

Question 1

In common law, identify the three types of persons who may enter onto property, and give an example of each

Answer 1

Trespasser
Ex: A thief

Licensee
Ex: 1st category - postal workers, meter readers, hunters, snowmobilers & cross country skiers
2nd category - insurance salespersons, milkmen and direct sellers of other products

Invitee
Ex: Generally a business’ customers fall within the category of invitees
Those using municipal parks, playgrounds and libraries, and those attending free lectures
The element of “invitation” must exist

Question 2

Briefly explain the legal duty owed by occupiers to these three types of persons (Trespasser, Licensee, Invitee)

Answer 2

Trespassers - no legal duty owed
Exceptions:
- Occupier not to set traps
- Occupier not to intentionally harm the trespassers

Licensees - licensees must take the premises as they found them
Exception:
- Occupier has a duty to warn licensees of any hazard which has been introduced to the premises which they would not normally expect and which the occupier is aware of and knows to be dangerous

Invitees - occupier has a duty to protect the invitee against dangers he is aware of, as well as against those which with reasonable care he might discover

Question 3

Explain why children are not generally considered trespassers and explain the duty owed by an occupier of property to children who may enter unto their property

Answer 3

• Children lack the mature judgement to avoid risk, they are often eager to investigate or interfere with objects which would have little to no attraction for an adult
• In common law, if by its nature an object, normally harmless in the hands of an adult, attracts a child and causes injury, the owner thereof must show that “every reasonable precaution was taken to safeguard the child from the object”

Question 4

Some provinces have enacted statute law called “Occupiers Liability Acts”. How has this affected the duty owed by occupiers from the duty owed under Common Law?

Answer 4

They amend the common law terms of licensee and invitee, classifying them instead, within the heading of “visitors”. The effect is to replace the common law duty with a common duty to take reasonable care that visitors are safe when using the premises

Question 5

Briefly explain the duty owed to others by owners of domestic animals

Answer 5

There is no first free bite and a dog’s owner is deemed legally liable from the first bite

Question 6

Parents are generally not responsible for the torts of their children. Explain, using examples, four exceptions to this rule

Answer 6

• There was a demonstrated failure on the part of the parent(s) to properly supervise and control their child’s activities
  Ex: Parents who leave young children at home with no supervision or who leave them unattended at a public event will generally be responsible for the injury or damage they cause to others
• The injury or damage was caused by a dangerous thing(s) or animal(s) relinquished by the parent(s) to the control of the child
  Ex: Parents will be held financially responsible for injury or damage caused by the following things given by them to their children: A gun/knife, an ATV/dirtbike/snowmobile/watercraft, fire crackers or powerized model aircraft
• The injury or damage was caused by a child acting on the authority of the parent(s)
  Ex: Examples of situations imposing financial responsibility upon the parents would include injury or damage caused to others when the child is directed by the parents to: cut the lawn, remove snow or paint exterior of dwelling or outbuilding
• The injury or damage arose out of the duties of employment in the parent’s business
  Ex: When parents employ their children in their business, they shall be responsible for any injury/damage caused to others arising out of such employment

Question 7

Generally, in Common Law, landlords are not responsible for ensuring that a building or land rented to others is fit for the purpose for which it is rented. State two exceptions to this rule

Answer 7

• When a landlord rents furnished premises to a tenant, it is presumed that the premises are fit for the purpose leased at the outset of the tenancy
• If the landlord has contracted to maintain the premises and fails, after reasonable notice to do so, any injury or damage to property of the tenant is the responsibility of the landlord

Question 8

Briefly explain the responsibility for damages caused by each tortfeasor when losses are caused by more than one person

Answer 8

The onus placed on persons working together is the same as if they were working alone. Reasonable care must be taken to ensure that injury or damage does not result out of their actions

The law provides that “each party shall be held liable for the entire damage”

Question 9

In Common Law, owners or tenants are generally not liable for the negligence of an independent contractor. Identify five exceptions to this rule

Answer 9

• The work being conducted is inherently dangerous
• The work creates a public nuisance
• There is a breach of a statutory obligation
• The injury or damage arose out of the use of defective equipment or plant supplied by the owner or tenant
• They control the manner in which work is to be done