Important Insights For Commercial Defendants In Slip And Fall Claims

Civil litigation lawyers are no strangers to slip-and-fall claims. As insurance defence counsel, many of our clients' insureds are commercial entities whose customers turned into plaintiffs. These insureds may include the owner or lessee of the premises (often a retail store), and/or a third party service provider. This article is from the perspective of a retail store as occupier.

Often, commercial parties with ongoing matters with one another will have the foresight to enter into a service contract governing an agreed-upon response to legal disputes. Such service contracts generally include the following terms:

definition of the scope of the service provider's services or operations; hold harmless & indemnity clause (an agreement that the service provider will not assert a claim against the store for incidents arising out of the services, and will indemnify the store for any expenses incurred in responding to claims related to or arising out of the services); and covenant to insure (an agreement to obtain certain insurance coverages and add the store as a named insured under the policy.) Consider the following scenario: the insured, Rogers Mart, owns and operates a retail store, and owns an adjacent parking lot. A plaintiff trips and falls in the parking lot. She commences a civil action, and pleads that she tripped on uneven pavement.

Rogers Mart was party to a service contract with a litter pick-up company, Pick-It-Up Inc. Pick-It-Up contracted to keep the parking lot free from garbage and debris, and to regularly inspect the parking lot and alert Rogers Mart of any hazards.

The service contract contains a hold harmless clause and a covenant to insure in favour of the store.

The plaintiff names the store and the service provider as co-defendants in the statement of claim, alleging negligence and breach of the Occupier's Liability Act. Particulars of negligence (against both) include failure to inspect the parking lot, failure to maintain the parking lot, failure to report the uneven pavement, and failure to repair the uneven pavement.

This one fairly typical factual context gives rise to three separate potential rights and remedies to a commercial occupier. The first is a fairly standard negligence based analysis which turns first on which entity is responsible (at common law or assumed by contract) for the area where the plaintiff fell.

The second arises from the terms in the standard service agreement which may include contractual remedies for breach of a hold harmless/indemnity or covenant to insure provision. The third arises when the covenant to insure is complied with and the store finds itself as an additionally named insured on the contract of insurance policy with corresponding rights and potential remedies.

This article takes a high level look at these three available approaches and remedies.

Issue no. 1 - Claims in negligence and/or under the Occupier's Liability Act

We first must consider whether the insured store may ultimately be liable to the plaintiff for her injuries, in either negligence or for breach of the duty of care under the...