Homeowners Liability During the Holiday Season

Sandra Zisckind goes on air with AM640’s John Oakley to discuss drunk driving, slip and falls, homeowners liability, city claims, and insurance coverage during the holiday season.

Click play to listen to the clip or you can read the transcript below:

John Oakley: We are entering into a high risk season for injuries, in what sense?

Sandra Zisckind: Drunk driving is up substantially, you would think in this day of age you would see a decline, but I can tell you from personal experience I’m seeing an increase in drunk driving accidents and injuries.

John Oakley: If you’re injured as a result of a drunk driver, do you have a claim? Are we seeing more or less claims as we enter into the holiday season?

Sandra Zisckind: There are certainly a lot of drunk driving claims coming out now as we enter the colder months of the year, however, there were also a lot of drunk driving claims in the summer. As Canadians, our roads are better in the summer, we think we can be a little more careless. So a lot of accidents actually happen in the summer, as we see with pedestrian injuries and deaths, that being said, very serious accidents happen around Christmas time when people just aren’t as careful with their holiday cheer. There are some simple solutions, if you know you’re going to a holiday party, you don’t need to be driving, make alternative arrangements such as taking a taxi or Uber, do not get into the driver’s seat.

John Oakley: Tell us more about personal liability. A lot of people are under the assumption that they may be charged criminally, or that their insurance will take care of things, but let’s say the victim that you hit does need serious rehab or even if they claim that something gets thrown out of wack (neck or brain injury), what happens next? The personal injury component can loom really really large, can’t it?

Sandra Zisckind: Absolutely, you can lose your house, it’s really not a joke. Let’s remember, insurance does cover you, but if you’re convicted of a criminal offence for drunk driving, your insurance will take an off coverage position, which means they are going to distance themselves and they’re allowed, by virtue of the policy, to only pay up to $200,000 if you are convicted of drunk driving. Now, let’s say you catastrophically injured someone, so quadriplegic, paraplegic, brain injury and the claim is in the millions of dollars, you’re insurance company is saying that you drank and drive and were convicted of that felony, they’re only going to cover the first $200,000, now you are on the hook for the rest which could be in the millions of dollars.

John Oakley:  In the example above, the insurance company is only covering the first $200,000 of damage which may lead to losing your home, as a home owner I have another concern, and this has to do with whether I can get out there in a timely fashion and clear my side walk, even if it is on city property. I guess that liability falls on me, because some people could claim that you don’t have enough salt down if I slip I can sue, what’s the situation around that?

Sandra Zisckind: So you have to maintain your property in a reasonable fashion, that means you have to salt, sand, remove the snow in a reasonable and timely fashion. So if people are visiting your property, like your aunt is coming over and she slips and falls on your property because you failed to salt, that aunt could sue you. In short, if you know people are coming over, you have to maintain your property carefully or you’re responsible.

John Oakley: How easy or difficult is it to make a claim? Let’s say I slip on somebody’s property or even on a city sidewalk in front of somebody’s home, how would I go about proceeding with a claim here?

Sandra Zisckind: We see these claims all the time. We haven’t seen them yet because it’s not slip and fall season, the weather has been unseasonably mild, but it’s going to start. Once that snow and freezing rain starts coming, then you would hire a personal injury lawyer like myself and we would bring you in and grill you under the microscope, typical questions we will ask our clients include:

• Did you have salt out?
• Do you know what weather is like this time of year?
• Why weren’t you prepared?

John Oakley: Oh really, so that’s what I always wondered, that you can start having competing claims that the homeowner was adequate in their response vs. the person who was negligent in how they were walking when they tripped on the sidewalk.

Sandra Zisckind: Well, you can have both. You can have what’s called Contributory Negligence. The person could be walking in high heels for example, which may not be appropriate for winter weather, so they are 25% responsible, and then the homeowner is 75% responsible because there was no salt down on the property.

John Oakley: Well, what about city property that isn’t maintained? Let’s say someone tripped along the sidewalk, can you go after the city for that?

Sandra Zisckind: You can. The problem is that the city has a harder standard, a gross negligence standard. The city doesn’t have to get there within the first 1-2 hours after a snow storm, they have anywhere from 24-48 hours, depending on the municipality, to get there to salt and sand.  So the day after, if you’re falling, you probably don’t have a claim against the city

John Oakley: I wondered about force majeure, an act of God, when we had the ice storm in my neighbourhood. Trees in my neighbourhood were falling, branches were falling, and if you got hit by something like that, would you have a claim in that regard?

Sandra Zisckind: Depends on the situation. You’re right about force majeure, or an act of God, exclusion of liability under the law. However, if you can make a claim that the homeowner knew that a tree or a branch was shaky and didn’t do anything to reinforce it, you can always make a claim of negligence against the homeowner. However, if it was simply a tree that got hit by lightening, for example, not much can be done.

John Oakley: In your practice, personal injury law, what is the most serious type of claim?

Sandra Zisckind: Well, the most serious injuries always involve pedestrians (bicyclists are considered pedestrians). I’m working on a case today where a woman was crossing the street and was knocked down by a car at about 60 km / hour. She basically fractured every bone in her body. Those are the types of cases that we see the most serious types of injuries.

John Oakley: You have this new law coming into affect where you have to provide a wide gap between cyclists and vehicles, about 1m away, will this mitigate the number of claims or will it continue to be a problem?

Sandra Zisckind: That will most likely increase the number of claims. If the motorist doesn’t provide that distance, negligence against the motorist increases. As it is, there is a reverse onus on motorists when interacting with pedestrians or bicyclists. Most crimes in Canada, if you’re accused, you’re innocent until proven guilty. When you hit a bicyclist or pedestrian, you’re guilty until proven innocent.