Is Company Liable for Injury to Non-Employee Caused by Employee’s Safety Infraction?

ANSWER

A. The hospital is liable because it violated its duty to protect the safety of visitors to the premises under the province’s Occupiers’ Liability Act.

EXPLANATION

This situation is based on a case from Ontario. A paediatric dental surgeon broke her wrist after she fell on a wet floor in a hospital hallway. A hospital janitor was mopping the floor at the time but hadn’t put out “wet floor” signs as required by hospital safety policy. The surgeon sued the hospital under Ontario’s Occupiers’ Liability Act. The court explained that, under the Occupiers’ Liability Act, a property owner has a duty to “take such care as in all the circumstances is reasonable” to see that visitors to the property are reasonably safe while on the premises. That is, the hospital had a duty to keep the corridors on the surgical floor safe for all individuals using them, including the surgeon. There’s no question that a wet floor poses a slip-and-fall hazard. The hospital recognized this danger by creating detailed cleaning procedures and training staff on these procedures. These procedures included putting out signs warning people that the floor was wet. But the janitor, a hospital employee, didn’t put out the required “wet floor” signs. And his breach of hospital procedures constituted a breach by the hospital of its duty under the Occupiers’ Liability Act, the court concluded. WHY WRONG ANSWERS ARE WRONG B is wrong because had the hospital violated the OHS Act, the surgeon still couldn’t sue it under that law for her injuries. OHS laws require “employers” to safeguard “workers” from injury. But even if the hospital was considered the surgeon’s “employer,” its failure to protect her might result in a safety violation but not a civil lawsuit for damages. That’s because the OHS laws—and the workers’ compensation laws—don’t allow injured workers to sue their employers for workplace injuries. C is wrong because even if the surgeon was negligent (and it’s not clear that she was), such negligence might reduce her damages but wouldn’t get the hospital off the hook. In Canada, courts consider whether an injured party contributed to her own injuries. If so, the court will apportion the negligence between the injured party and the person she’s suing and reduce the damages accordingly. But so-called “contributory negligence” won’t absolve the defendant from liability. D is the wrong because even though the janitor caused the surgeon’s fall by failing to put out wet floor signs while he was mopping the floor, the hospital—not the janitor—has a duty to ensure the safety of visitors to its premises. And the janitor’s failure to obey hospital policy would constitute a violation of that duty. SHOW YOUR LAWYER Hibberd v. William Osler Health Centre, [2009] O.J. No. 588, Feb. 13, 2009