View the fictional fact pattern here.
Risk Analysis: post #1
Statutory Analysis: View Post #2
Common law/Case law:
A non-intentional/ negligence tort could result from this situation as follows:
- Duty: The occupier has a duty to (a) reasonable steps to insure safety, (b) no deliberate, and no reckless disregard leading to injury for trespassers, and (c) a written occupational health and safety policy.
- Breach: This appears a breach of reasonable steps, a breach of reckless disregard, and a breach of health and safety policy requirements.
- Injury: There is NO injury at present, and therefore no successful negligence claim. If there were an injury, this would suffice to meet the requirement.
- Causation: A broken ankle from impact can reasonably be caused by falling through the tarp into the pothole, and possibly (??) caused as well by the lack of a written plan.
If there were a successful negligence case, there are several defenses and issues.
If one employee is found responsible, the entire company could be vicariously liable for the damage.
A trespasser would be deemed to have assumed the risk, as the statute says (and as dictated by case law principles). But even so, the mandate to avoid reckless disregard would still be in force.
The defenses of contributory or comparative negligence, and the thin-skull rule regarding pre-existing medical conditions, appear non-applicable to this case.
Conclusion: This physical risk represents legal and financial risk. An injury of a guest or even a trespasser could result in a negligence suit against the hotel, with no guaranteed defenses.
Good job, everyone!
View the fact pattern here
Risk Analysis: view yesterday’s postStatutory Review:
The most relevant statute appears to be the B.C. Occupiers’ Liability Act
. The Act is based on common law principles and is formally codified in legislation of most common law jurisdictions.
An occupier is the person or group who has control
over the premises, usually the owner, leasor or rentor. Premises include both land and buildings. In this case, the occupier appears to be the hotel.
The occupier owes a duty of reasonable
steps to maintain safety.
The relevant exception is for trespassers, who are considered to have assumed the risk.
To trespassers, we owe a duty of no deliberate injury
, and no reckless disregard
A person in the alley may be a guest/visitor, or may be a trespasser.
While there is no deliberate injury, the tarp over the hole does not appear to be a reasonable step to minimize the risk, and could even be considered “reckless disregard” for safety, since a person could easily step on the tarp and fall through the hole.
The lack of a written health and safety plan is also a violation of the Workers Compensation Act, also codified in most common law jurisdictions, and which requires all employers have a written health and safety plan, and to take reasonable steps to insure safety. Check back tomorrow
for common law/negligence analysis . . .
MODEL ANSWER (View the sample fact pattern here.)
Risk Analysis:The deep pothole represents a physical risk of falling and perhaps spraining or breaking an ankle. This could lead to legal/liability risk, which could lead to financial risk. There are also legal risks associated with violating statutes, as noted below.
The risk is unnecessary and could be called reckless.
It is a pure risk, with no positive speculative outcome, and it is a risk particular to this hotel, as opposed to a risk which is fundamental to all hotels.
A fall in the pothole could be moderately frequent (horizontal “x” axis), and moderately severe (verticle “y” axis).More tomorrow . . .