In order to be a successful lawyer, you have to do at least 1 of 2 things: play golf or drink wine. I envy the lawyers that can do both, but since I lack the necessary hand-eye coordination to play golf without subjecting myself to injury, I made the sensible choice and decided to propagate my legal career by drinking wine.

In an attempt to take another step down the road to becoming a successful lawyer, I recently attended a meadery. For those of you unfamiliar with mead, it is wine created by fermenting honey, whereas “regular” wine is created by fermenting fruit.

There was a large notice posted on the main doors of this meadery. It stated that, because of the increased likelihood of encountering a bee while on its premises, the meadery would not be held liable for any injuries related to bee stings. Despite the significant risk involved, as made obvious by the warning, I bravely entered the meadery and bought some mead as I knew that the road to becoming a successful lawyer would be fraught with danger. Thankfully, I escaped without succumbing to any bee stings, and as any inquisitive lawyer would do, I thought about whether or not the meadery could reasonably rely on its waiver of liability notice.

There are two main factors to consider when determining liability in a personal injury matter – a party’s duty of care to keep premises safe, and the other party’s assumption of risk for entering those premises.

Generally, if you are responsible for the condition of premises, whether it be a restaurant, a gym, or even your own house, you have a duty of care to make sure that visitors to the premises are reasonably safe in using the premises for its intended purpose, as stated at section 5 of the Occupiers’ Liability Act, RSA 2000, c. O-4. If you are hosting a dinner party at your house for example, you have a duty to make sure that your dinner guests are safe from things that you can expect could potentially cause harm at a dinner party, such as making sure that all the chairs your guests will be sitting on are sturdy and will not break, and making sure that the steps leading up to the front door of your house are clear of ice and snow. If your dinner guests are injured because you failed to exercise your duty of care, you may be liable for their injuries. Of course, you are not responsible for events that are not reasonably foreseeable, such as an aurora borealis localized entirely within your kitchen**.

The above being said, section 8 of the Occupiers’ Liability Act states that you do not have to exercise your duty of care with respect to risks willingly accepted by the visitor. That is why you usually have to sign a waiver of liability before participating in an athletic event where injuries are more likely to occur. The event host, however, has to make sure that you are aware that what you are signing is in fact a waiver of liability. Therefore, a smart host will put the words “WAIVER OF LIABILITY” in bold letters at the top of the document so that if you do get hurt while participating in the event, you can’t argue that you didn’t read the waiver, as we all never do, and that you didn’t know you were waiving your right to sue for personal injuries.

However, does signing a waiver of liability protect the host from negligence? Let’s say that the athletic event in question was taking place at a ski hill, and let’s say that the ski hill operator knew that the chairlifts needed to be replaced but negligently decided not to replace them. If a skier is injured from falling off of a broken chairlift, would a waiver of liability prevent the skier from suing the ski hill? In my opinion, it does not. However, if a skier is injured simply by skiing, and the skier argued that he/she would not have gone skiing had he/she known of the inherent risks involved with skiing, it is my opinion that the waiver of liability would protect the host when the host may have otherwise been liable. In my opinion, the waiver of liability serves to protect a host from the liability incurred by failing to advise visitors of the risk involved with entering the host’s premises – it does not authorize the host to be negligent in ensuring the visitors’ safety.

You may also restrict or exclude your liability by simply giving an express warning to your visitors, like the large notice on the main doors of the meadery I visited. However, as stated in the Occupiers’ Liability Act, a warning, without more, would not be treated as absolving liability from failing to exercise your duty of care to keep visitors safe unless the circumstances are such that a warning is sufficient. If the risk of injury is low, then a simple warning may suffice. The more likely that the visitor could be subject to a serious injury, the greater your need to ensure that visitors are aware of the nature of the danger, and this would normally require a signed waiver on their part.

So, would the large notice on the meadery’s main doors be enough to let me know of the extreme danger that lied ahead? That’s up for the court to decide, but it’s fair to say that having that notice is better than having no notice at all. If the meadery wanted to further increase its protection against visitors claiming that they would not have entered the premises had they known of the increased risk of bee stings, it should get its visitors to physically sign a waiver of liability.

In summary, if you are responsible for the condition of premises, you need to make sure that the premises are reasonably safe for your visitors. If you want to restrict your potential for liability, you can put up a notice informing visitors that they are entering the premises at their own risk. However, this is far from the best way to protect yourself. If you want even more protection, you should get your visitors to physically sign a waiver of liability and ensure that they understand what they are signing. Taking these steps will lessen the chance that you are liability in the event a visitor is injured on your premises. Finally, even with a signed waiver of liability, you should continue to take steps to ensure the visitors’ safety because, in my opinion, a waiver of liability will not protect you from personal injuries sustained by visitors that arose from your own negligence.

And yes, making people sign waivers of liability before inviting them over for a dinner party is a sure-fire way to make friends.

By Anthony Pranata of Aarbo Fuldauer LLP

If you have a legal issue that you need reviewed by a lawyer, please contact the law office of Aarbo Fuldauer LLP at:

Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: (403) 571-5120
Email: [email protected]
www.aflawyers.ca

Anthony Pranata
Barrister & Solicitor

*The information contained in this blog is not legal advice and should not be relied upon.  If you require specific legal assistance, please contact a lawyer.   At Aarbo Fuldauer LLP, our lawyers have broad experience in many areas of practice.  If you require assistance in an area of law that is outside our area of practice, we can refer you to a suitable colleague.*