Subcategories of Negligence

• Author: Carolyn MacLean/Alex Colangelo
• Pages: 93-109

93

7

Subcategories of

Negligence

Learning Outcomes

After completing this chapter, you should be able to:

• Explain the concept of occupiers’ liability and the duty

that an occupier owes to entrants to a property.

• Explain product liability and how it results in

manufacturers and others being held liable in the

absence of a contract.

• Explain how negligence law applies to different

categories of hosts, including commercial and social

hosts, and the persons to whom such hosts owe

duties.

Introduction ........................... 94

Occupiers’ Liability ..................... 94

Occupiers’ Liability Statutes ............95

Duty to Wrongdoers and

Those Who Assume Risks ...........97

Commercial and Social Hosts ............ 98

Product Liability ........................ 101

Categories of Product Liability ..........102

Chapter Summary ...................... 107

Key Terms ............................. 107

Review Questions ...................... 107

Exercises .............................. 108

© [2023] Emond Montgomery Publications. All Rights Reserved.

94 PART I TORT LAW

Introduction

The law of negligence has continued to evolve since the seminal case of Donoghue v

Stevenson,1 and courts have applied and adapted its principles to a range of different

circumstances. For example, in the case of bars and restaurants that serve alcohol

(commercial hosts), courts have found that such hosts owe a duty of care not only to

the patrons to whom they serve alcohol, but also to strangers their patrons may

encounter on the way home. In other cases, notably in regard to the duty owed by

occupiers, legislatures have passed statutes that codified or simplified the common

lawrules.

In this chapter, you will be introduced to what we may characterize as subcategories

of negligence, specifically in regard to occupiers’ liability, product liability, and the lia-

bility attributed to commercial and social hosts.

Occupiers’ Liability

The principle of occupiers’ liability concerns the duty owed by landowners, tenants,

and other occupiers of property (generally, the person in control of the property) to

those that enter the premises.

Historically, at common law, an occupier’s duty depended on the category to which

the entrant belonged. To trespassers who entered the occupier’s land without permis-

sion or consent, the occupier simply owed a duty not to willfully or maliciously cause

the entrant or the entrant’s property injury or damage.2 The occupier had no obligation

to otherwise protect the trespasser from harm. In the case of licensees, being those

that entered the occupier’s property with permission, such as in the case of social

visitors, the occupier owed a duty to warn such entrants “of all concealed dangers of

which they are aware.”3 The most extensive duty was reserved for invitees, being

guests who entered the property with permission and under a business relationship

where the entrant paid a fee for entry. To invitees, occupiers had a duty to “use rea-

sonable care to warn the invitee of dangers on or in the private property”4 about

which the occupier knew or ought to have known.

The different duties at common law resulted in a number of issues. First, at common

law, an occupier did not have a duty to take care to keep entrants safe. Rather, occu-

piers simply had to warn of dangers. This was due to the fact that occupiers’ liability

principles developed in the context of “an over-zealous preoccupation with the sanctity

of real property rights, even over that of human life.”5 Second, it could be difficult in

some circumstances to distinguish between different categories of entrants.

occupiers’ liability

the duty of care that

those who occupy real

property owe to those

that enter the premises

trespasser

a person that enters a

premises without consent

licensee

at common law, a person

that entered the occupier’s

property with permission

invitee

at common law, a person that

entered the occupier’s property

with permission and under a

business relationship where

a fee for entry was paid

1 1932 CanLII 536, [1932] UKHL 100 (FOREP).

2 Babineau v Babineau, 1981 CanLII 1806, 32 OR (2d) 545 (H Ct J), aff’d 1982 CanLII 2236, 133 DLR (3d) 767

(OntCA).

3 Babineau v Babineau, 1981 CanLII 1806 at 10, 32 OR (2d) 545 (H Ct J).

4 Ibid.

5 Waldick v Malcolm, 1991 CanLII 8347, 63 DLR (4th) 583 (Ont CA), aff’d [1991] 2 SCR 456, [1991] SCJ No 55 (QL)

at para 17, quoting the Ontario Law Reform Commission’s Report on Occupiers’ Liability (Toronto: Ontario Depart-

ment of Justice, 1972).

© [2023] Emond Montgomery Publications. All Rights Reserved.