Safety obligation

In this article, Me Lambert explains the principle of the obligation of security in the context of civil liability actions. Below is a brief explanation of the applicable rule, the exceptions to that rule and a particular case of application of the principle, all illustrated by various examples from the case law.

Failure to omit

First of all, you should know that there are several categories of faults in Quebec civil law. We therefore find mainly the fault of commission, which results from a positive act committed by its author. One thinks, for example, of the person who pours wood alcohol directly into an open fire, causing an explosion and causing burns to a mother and her young child. However, on the other hand, there is also the error of omission. Rather, it results from a person’s failure to perform a positive act that he should have done. We are thinking here, in particular, of the conductor who fails to honk his horn as he prepares to hit a passerby on the railway.

Thus, it is understood that a person does not necessarily need to make a positive gesture to commit a fault. Indeed, the failure to do something can often be a fault in itself. Moreover, the obligation of safety derives its basis largely from this principle.

The rule

The rule on the safety obligation is simple: the person in charge of an installation intended for use by the public has a duty of safety towards the users of these installations and must prevent the occurrence of any accident foreseeable in the circumstances. The person in charge must therefore ensure, among other things, the proper functioning and proper maintenance of his installation, in addition to detecting and correcting any potential design defects and fixing the structure in an appropriate place. Failure to ensure the safety of the installation also constitutes a fault of omission on the part of the person responsible, who will then have to compensate the victim for any damage caused by his fault.

A shopping centre must, for example, take reasonable steps to ensure that passers-by are notified of the presence of an elevated platform in the middle of a pedestrian walkway, especially on busy days. Indeed, it is foreseeable that the platform could go unnoticed and cause accidents during such days. Thus, the shopping centre failed in its security obligation, in this case, by failing to warn passers-by of the presence of the platform. She is therefore responsible for the fracture of the shoulder of the third party who falls when hitting his foot on the platform.

In addition, this duty of safety also applies to the person in charge of a field. The person in charge of the field must then, in particular, ensure the maintenance of his land as well as prevent and /or correct trap scenarios. The owner of an attic housing an access well 2 meters long by 0.75 meters wide and 0.5 meters deep, not visible in the dark, is therefore responsible for ensuring that the inherently dangerous configuration of the premises does not cause harm to others. Therefore, his responsibility is retained when a third party falls into the void while trying to reach a chain to turn on the light of the attic.

Obligation of means

This rule certainly seems harsh at first. However, it is important to understand that the duty of security represents an obligation of means, not of result. Thus, the person responsible is only required to take reasonable measures to prevent accidents foreseeable in the circumstances, and not all possible accidents.

The case law also considers preventive measures such as the installation of fences of adequate dimensions or the installation of explicit and prominent signs around the structure or potentially dangerous land sufficient. The diligent owner is then no longer held responsible for the damage suffered by the reckless or negligent third party who still ventures on his land.

In addition, the owner who takes all the means at his disposal to correct the trap scenarios on his land also meets his safety obligation. Indeed, it is impossible, for example, to hold the owner of a golf course responsible for a daily tour of his property in order to detect and correct holes, pitfalls and other dangerous situations for golfers.

It is therefore understandable that the person in charge satisfies his duty of safety when he takes reasonable measures to ensure the safety of his structure or land, even if an accident still occurs on his property. However, the measures considered reasonable depend largely on the specific circumstances of each case. As a result, it is often necessary to rely on the reasonable person test to determine whether a measure is sufficient in the circumstances.

The event organizer

Finally, we emphasize that the obligation of safety lies with the person in charge of the structure or land, and not with its owner. Thus, the organizer of an event who uses the structure or land of others becomes responsible for ensuring the safety for the duration of his event, in the same way as its real owner. The body responsible for organizing and holding festive events held in a city park, for example, is therefore responsible for the damage suffered by the third party who is injured during the course of his event. Indeed, in this case, a skater fell after colliding with a wire that was suddenly stretched in the middle of the multifunctional track during the preparation of the festivities. However, the organization had to ensure that park users were not exposed to any foreseeable danger as a result of the preparatory activities for the event.

In another case, the organizer of off-road vehicle races held on the frozen surface of a lake was also found responsible for the damage suffered by a third party during its event. Indeed, it was foreseeable, in the circumstances, that a driver could lose control of his vehicle and hit a spectator. Therefore, the race organizer had to take all reasonable steps to avoid this kind of accident. However, mere warnings to the public to move away from the runway were not sufficient in the circumstances. The judge points out in particular that the organizer could have placed bales of hay along the track, in order to cushion the impact of the skidding vehicles. In addition, the judge specifies “that it is not enough to give warnings; we have to make sure that they are respected.” Thus, the organizer of the race failed, in the present case, to take all reasonable measures to ensure the safety of the spectators.

In short, we understand that the person in charge, and not the owner, must ensure the safety of his installation as well as his land. However, the law only requires the diligent manager to take all reasonable steps to avoid accidents foreseeable in the circumstances. Nevertheless, failure to take these measures constitutes a fault of omission and engages the responsibility of the responsible.

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