Why your commercial clients should err on the side of caution

Maybe a caution sign wouldn’t have prevented an accident on your client’s business property. Still, your commercial clients have a legal duty to warn people about hidden dangers, Ontario’s Appeal Court found in a recent occupiers’ liability decision.

In T.C.O. Agromart Ltd. v. Sutton Farms (Nacona) Ltd., a T.C.O. Agromart employee drove a crop sprayer across a private bridge at Sutton Farms, a dairy cattle and cash crops farm in Napanee, Ont.  

Ten-foot-long steel beams supported the underside of the 16-foot-wide wooden bridge. A three-foot width of wooden deck extended beyond the outermost steel beam on each side of the bridge. No structural support existed below the three-foot wooden overhang on either side.

A T.C.O. Agromart employee drove a crop sprayer over the bridge. Two-thirds of the way over the bridge, the sprayer veered to one side, causing the bridge to collapse partially. The crop sprayer fell into the river and the driver, initially trapped underwater, was able to escape without serious injury. T.C.O. Agromart’s insurer covered the substantial damage to the sprayer.

In a subrogation claim, T.C.O. Agromart’s insurer sued Sutton Farms. They alleged negligence, since Sutton Farms failed to warn of the hidden danger caused by driving on the unsupported wood beams overhanging the metal support beams in the centre of the bridge.

At trial, the owner of Sutton Farms testified he and members of his family were aware of the risk posed by the unsupported overhang on either side of the bridge. For example, they made sure the wheels of their equipment were always on the (steel) beams, since it would be unsafe to drive too far to the right or left.

Sutton Farms’ owner testified he had not expressly prohibited anyone from using the bridge, nor did he post warnings about the unsupported overhang. The family believed it was common sense for people to drive on the centre part of the bridge. Plus, no one had veered off the centre of the bridge in 40 years, so that risk was unforeseeable.

The trial judge agreed with Sutton Farms.

“I am not prepared to find that the absence of warnings was a factual cause of the accident,” the trial judge found.

Also in the news: Why Canadian M&A-related claims are diverging from U.S. trends

“A sign warning [T.C.O. Agromart’s driver] of the risk of failing to stay in the centre of the bridge would not have prevented the accident since Mr. Denyes already knew he had to keep the sprayer centred. Therefore, I find that signs warning of the need to stay in the centre of the bridge or that the overhang was not supported were not required by s. 3 of the OLA [Occupiers’ Liability Act] in this case.”

T.C.O. Agromart appealed the trial judge’s decision and the Appeal Court overturned it. The Appeal Court ruled Sutton Farms did in fact have an obligation under the Ontario Liability Act to warn of the bridge’s hidden danger.

“In my view, the trial judge committed a legal error by conflating causation with the standard of care and effectively failing to perform a standard of care analysis,” Ontario Court of Appeal Justice Peter Osborne wrote for the unanimous 3-0 panel of judges. “Once she decided that the presence of signage would not have prevented the accident, she determined that signage was not required to meet the standard of care, and therefore, there was no breach of that standard.

From Cracked Engines to Critters: Common Boat Claims and Avoidable Oversights Image

Insights Paid Content

From Cracked Engines to Critters: Common Boat Claims and Avoidable Oversights

Aviva’s Marine Assessment Unit shares real world boat claims, coverage surprises, and practical insights brokers can use to better protect NauticLife customers.

By 

Sponsor Image

“This analysis was an error. The focus of the standard of care analysis must be on the conduct of the bridge owner and what duty he or she owes to all users of the bridge.”

The appeal court found the risk posed by the unsupported wooden beams on either side of the bridge was entirely foreseeable, meaning the landowner had an obligation to warn of the risk.

For example, the Appeal Court found, Sutton Farms’ owner and his family “had some pieces of equipment they did not take across the bridge, such as their combine, because it was too wide and its wheelbase would be on the deck of the bridge but would not be supported by the steel beams underneath.

“And when he and members of his family were using wide equipment (i.e., wider than the supported width of 10 feet), they would use an alternate bridge approximately five hundred metres away.”

David Gambrill

David has twice served as Canadian Underwriter’s senior editor, both from 2005 to 2012, and again from 2017 to the present.