THE FENCE - By Gordon R. MacKenzie
Are you responsible if a trespasser gets hurt on your property?
Property owners must take reasonable care to see that all persons
coming on their property are reasonably safe- even trespassers.
But what if the trespasser hurt themselves climbing the fence trying
to get in?
Mr. and Mrs. Yelic tried to visit the grave of Mrs. Yelic's mother
at the Gimli Municipal Cemetery after regular visiting hours. Mr.
Yelic was seriously injured while trying to hop the decorative fence
bordering the cemetery. Mrs. Yelic had crawled between the two horizontal
metal pipes that made up the fence, but the joint between the top
pipe and the pillar supporting it gave way as Mr. Yelic tried to
go over it. (Yelic v. Town of Gimli).
The Manitoba Court of Appeal decided the irregular use of property
did not entitle Mr. Yelic to total safety, as it would be "unusual"
for a decorative fence to support the weight of a climber. The court
also noted that their decision would have been the same under that
province's Occupiers' Liability Act which became law after Mr. Yelic's
mishap. Ontario's Occupiers' Liability Act is similar, so, you might
expect the same result here.
A small victory for innocent property owners, but you could still
be liable to a trespasser-- even though they are violating your
rights as a property owner. So, be sure there are no hazards on
your property and your insurance coverage includes public liability.
This article is presented as general information only and is not
to be relied on as legal advice. You should contact your lawyer
to see how the law applies to your circumstances before any action