Canadian Underwriter

How curbside retail re-opening creates liability risk

May 14, 2020   by Greg Meckbach

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Retailers who are partially re-opening without letting customers into their stores could face liability risk if customers are somehow injured just outside the store, an insurance defence lawyer suggests.

Since May 11, some Ontario retailers who were originally ordered closed can now offer curbside pickup and delivery.

But retailers with store fronts normally do not have people lining up outside, said Chet Wydrzynski, an insurance defence lawyer with Dolden Wallace Folick LLP, in an interview. So to manage their liability risk, businesses need to have policies in place to enforce physical distancing, he recommends. This could include enforcing social distancing in the lineups, asking customers to wait in cars, or setting up appointments.

“Most businesses have never had to deal with that,” Wydrzynski said of the social distancing precautions in place with COVID-19, which was declared a pandemic Mar. 11 by the World Health Organization. “It would probably be worthwhile walking through the area on a daily basis and taking log notes to make sure there are no apparent hazards where people might be lining up.”

On Mar. 17, Ontario declared a state of emergency, which has been extended to June 2. A total of 21,494 people have tested posted for COVID-19 in Ontario (of whom 1798 have died and 16,204 have recovered), the provincial government announced Thursday.

Loosening restrictions on Ontario’s “non-essential” retailers took effect May 11, part of the province’s gradual, staged approach to re-opening the economy.

Several categories of business deemed “essential” have been allowed to remain open this whole time. Those include insurance brokerages and agencies, insurance company offices, supermarkets, convenience stores, The Beer Store, government liquor stores, bank branches, pharmacies, gas stations, vehicle repair shops, and cheque-cashing services.

As of May 11, businesses not deemed “essential” can still offer retail sales under three conditions:

  • they use an alternative method of sale such as curbside pick-up or delivery
  • they have a public entrance that opens onto a street or exterior sidewalk
  • members of the public are not permitted to access the place of business, except in exceptional circumstances.

Let’s say a retailer is named in a lawsuit by a person who got injured by tripping and falling on the sidewalk outside, for example, or by someone who alleges they got a disease because of a lack of social distancing. That retailer is not necessarily off the hook just because the injury occurred on municipal property or on common area of a plaza, suggests Wydrzynski.

“If conditions on the property are flowing off the property, I think there is a potential for liability and each individual store is going to have to come up with their own tailor-made bespoke policies and procedures depending on their situations,” said Wydrzynski.

One possible scenario is if snow melts from a retailer’s roof, flows onto the adjacent sidewalk, freezes, forms ice, and then the retailer fails to clear or salt the ice. In several personal injury lawsuits, under the Occupiers Liability Act, an Ontario court has said an “adjoining” owner could be liable for something happening on a municipal sidewalk, noted Wydrzynski. He alluded to Moody v. Toronto (City), released in 1996 by the Ontario Superior Court of Justice.

In Moody, a major league baseball fan left the Skydome (the Toronto stadium now known as the Rogers Centre) Apr. 5, 1994 after watching a Blue Jays game. The plaintiff tripped over a one-inch edge created where a concrete slab had sunk about an inch relative to the slab next to it on Blue Jays Way, near the stadium. Although the sidewalk is on City of Toronto property, the plaintiff argued that Stadium Acquisition Inc. (then the owner of the facility) should be a co-defendant.

Justice Michael Dambrot agreed, dismissing a motion by the stadium owner to have the lawsuit dismissed. Specifically, Dambrot found that Stadium Acquisition can in fact be considered an “occupier” of the sidewalk adjacent to its own property.

An “adjacent owner” can be liable in “special circumstances” for injuries, noted Justice Dambrot. In that particular case, the walkway in question is used almost exclusively by Skydome patrons, a significant number of Skydome patrons have no alternative but to use the walkway; and the number of patrons at a Skydome event makes it inevitable that at the beginning and end of an event, the crush of activity would make it impossible for a patron to watch for hazards on the walkway.

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