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“Beware of... Lawsuit”

Published: 11/19/2014

By Peter Henein

The law on a party voluntarily assuming risk is pretty well set in Canada – there’s even an old Latin maxim that dictates the law on the matter – volenti non fit injuria. The maxim holds that no wrong can be done to a person who consents to the injury.

Graphic 

Source: reddit

Recently, a photograph of a particularly clever warning sign went viral online (see @ThePeterHenein on Twitter). The sign appears to be an extension of the concept of volenti non fit injuria. The sign affixed to a fence warns of the following:

Please do not enter the dangerous area beyond this gate! You quite possibly will get hurt, then you will sue, then a protracted court battle will ensue exhausting your financial resources and you will lose because this sign that warned you will be “Exhibit 1”.

This sign’s popularity amongst legal practitioners provides an opportunity to reflect on the doctrine of voluntary assumption of risk – which comes up often when defending against product liability claims – and to analyse whether the statements in this sign are accurate. If someone did get hurt and sued the landowner, the legal proceeding may be protracted. Such a case would surely exhaust the parties’ financial resources, and the sign would definitely be marked as an exhibit. However, the sign may not have sufficient information to limit the sign poster’s liability.

Waiving Liability

Voluntary Assumption of Risk

Voluntary assumption of legal risk, if successfully argued, is a full defence to a negligence claim.2  In order to successfully make out this defence, the defendant must prove that the plaintiff voluntarily, with full knowledge of the nature and extent of the risk, expressly or impliedly agreed to incur such risk.3  In order to do so, the sign waiving liability must be brought to the plaintiff’s attention, and the waiver must sufficiently detail the risk the plaintiff is accepting.

In Saari v Sunshine Riding Academy, the Court found that a sign at a riding academy warning “Riders Ride at their Own Risk” did not protect the defendants from liability. There was no evidence that the sign was brought to the attention of the injured. Furthermore, the Court found that even if there was such evidence, it was “doubtful whether the words used are wide enough in their ordinary meaning to cover negligence on the part of the servants of the Riding Academy.”4

In contrast, the Court found that the defendant occupier was not liable in Galka v Stankiewicz. In this case, two individuals went to an archery range managed by the City of Toronto (“the City”). At the front of the range, the City posted a sign outlining a set of rules for the archery range and warning archers to enter at their own risk.5  While one archer was collecting arrows on the field, the other accidentally fired an arrow into his friend’s eye. Both archers admittedly read the sign, which expressly prohibited this conduct. The Court found that the sign was “obvious, legible, concise and understandable.”6  The City was not held liable.

Liability for the Landowner

So let’s talk about the warning sign that went all abuzz online...

Although the sign that went viral provides some detail regarding the consequences of going beyond the gate, the sign most pointedly deals with legal ramifications. The sign does not detail the physical danger. Even though the sign is in plain sight, would it persuade a court to absolve the owner from liability? Possibly, but we would argue most likely not. Arguably, the financial pain that results from a long drawn out litigation may be severely damaging to a person’s wallet and spirits. However, the sign posts no reference to what will actually cause the injury that could lead to a protracted law suit (horse stampede? unmarked holes? angry chickens?). There is no explanation of what constitutes the alleged danger beyond the gate. Consequently, a court would not find that the person who goes beyond the fence voluntarily assumed the risk.

The landowner may still successfully defend against a suit by someone who hops the fence and sustains an injury. Pursuant to the Ontario Occupiers’ Liability Act, an occupier of premises owes a duty of reasonable care to ensure that persons entering the premises are reasonably safe while on the premises.7  However, this duty of care does not apply in respect of risks willingly assumed by the person who enters the premises. In such a case, the occupier only owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person and to not have a reckless disregard of the presence of the person or his property.8  Because the fence is locked and has a sign that posits the area beyond the fence is dangerous, the landowner would argue that the person going beyond the fence assumed the risks. The duty of care that the land owner would owe a person hopping the fence would be minimal. As long as the owner does not set up traps or other mechanisms designed to cause injury, the landowner would not be liable for any ensuing injuries.

However all is not lost … while the sign makes a less than optimal waiver, it does do a good job at punishing the person who goes beyond the gate. Section 3 of Ontario’s Trespass to Property Act states that entry on premises is prohibited when an occupier posts a notice on an enclosed land indicating the occupier’s intention to keep people off the premises.9  The sign in question politely but firmly notifies the public that the landowner intends to keep people off the premises; the land is also enclosed by a gate.  Assuming this sign were posted in Ontario, a person going beyond the gate would be guilty of an offence and on conviction would be liable to a fine of not more than $2,000.10

Beyond the Gate

The image does not provide details of the dangers that lie beyond the gate. If the landowner has created danger with the intent of causing harm or has a reckless disregard of the presence of such a person, such as installing booby traps, a landowner may be held liable to a person who sustains injuries when going beyond the gate. The sign would be marked as exhibit one, but the hurt would be borne by both parties.

Litigation is expensive. If a person went beyond the gate, suffered injuries, and subsequently sued the landowner, the ensuing litigation would be expensive for both parties. If the landowner was not properly insured, then he or she would need to pay for the costs of litigation. Even if the landowner won the suit, the costs award would not cover the entire cost of litigation. In order to avoid the costs of litigation, the suit would most likely settle, and the sign would never make it in as an exhibit.

Fortunately for the landowner here, many trespassers do not know the doctrine of volenti non fit injuria. They do, however, know that law suits can be expensive. While a ‘beware of dog’ sign may not be a sufficient caution to scare trespassers, an expensive lawsuit is sufficiently terrorizing to keep away most intruders.

Key Take Away Principle

It would be pretty awful if this e-lert explained how expensive litigation was and then did not provide useful (and free) takeaways. If you want to have a legally enforceable sign that limits your liability, be sure to detail what dangers lay behind the sign. Otherwise you will be left with a sign that deters trespassers from going onto your property but does little in the way of limiting your legal liability. Most importantly, don’t pull a “Wile E. Coyote” and set up a bunch of spring-loaded booby traps behind the sign. 

The contributions of Meredith Bacal, articling student, in the preparation of this article are gratefully acknowledged.

_____________________________

2 Crocker v Sundance Northwest Resorts Ltd., [1988] 1 SCR 1186 at para 34.
3 Stevens v Hoeberg (1972), 29 DLR (3d) 673 (Ont HC).
4 (1967), 65 DLR (2d) 92 (Man QB) at 100.
5 2010 ONSC 2808, aff’d 2011 ONCA 428.
6 Ibid at para 73. 
7 Occupiers' Liability Act, RSO 1990, c O-2 at s 3(1).
8 Ibid at s 4(1).
9 RSO 1990, c T-21, s 3.
10 Ibid at s 2(1).