Is There A Duty To Warn Of Obvious Dangers?

• Published date: 31 March 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: Rogers Partners LLP
• Author: Ms Jocelyn-Rose Brogan

There are dangers in everyday life, but people do not need to be warned of all dangers. For instance, people do not need to be warned that jaywalking in rush hour traffic is dangerous.

In occupiers' liability claims, defendants should consider whether an alleged danger is an obvious one, in which case it should be argued that no warning about the danger was required.

To determine what qualifies as an obvious danger, a common theme is the use of a common sense approach. For example, what would be the purpose of a warning sign or instruction that would only tell an individual what they already knew from their own observations?

In this article, cases are outlined which address whether there was a duty to warn of dangers in four particular settings: a grocery store, a fitness centre, a park, and a recreational trail.

Grocery Store

In Miltenberg v. Metro Inc., 2012 ONSC 1063 ("Miltenberg"), the plaintiff, an elderly lady, alleged that she was injured while attempting to remove the bottom of two cream containers stacked one on top of the other from the top shelf of a freezer at the defendant's grocery store.

One of the arguments advanced by the plaintiffs was that there ought to have been signs cautioning customers that items may fall from their placement on higher shelves.

The motion judge rejected the plaintiffs' argument that the defendant had a duty to warn customers that reaching for goods on the top shelf could cause injury. He considered the risk to be obvious, stating:

.customers do not need to be warned that ice cream containers or any item could fall on them if not gripped properly. I accept that individuals are fully capable of figuring out whether they can reach items above head height and whether they can do so in a safe manner.I am not satisfied that a store must have warning signs scattered throughout the store to denote the potential danger to customers if one decided to secure an item from a shelf above one's height.

The motion judge employed a common sense approach and dismissed the plaintiff's action on a summary judgment motion.

Fitness Centre

In Hosseinkhani v. QK Fitness Inc., 2019 ONSC 70, the plaintiff alleged that she was injured during a fitness class when she tripped over a circular dumbbell which had rolled from the original position and into her path of travel.

The fitness instructor directed the class members where to position the dumbbells, but no instruction was provided on how the circular dumbbells should be placed to...