October 25, 2010 by Canadian Underwriter
There is an increasing risk exposure for larger commercial hospitality establishments that fail to prevent assaults, according to Lorne Folick, senior partner at Dolden Wallace Folick LLP.
Folick, an insurance defence counsel in B.C., was discussing liquor liability, waivers and damage awards in an address to the AEGIS Coverholders Conference in Toronto on Oct. 19.
“This is an area that is of concern to me and this is where I am seeing greater claims all of the time,” Folick said. “As an occupier, you must keep your premises reasonably safe. That’s a principal that’s paramount.
“In a bar room situation, what happens is that you will have doormen at various doors keeping an eye on things, trying to maintain control, [observing] people coming in vis-à-vis identification and seeing how they leave and the condition they leave in.
“The difficulty that I’ve seen with some of the larger establishments is that they are just so large that they can’t possibly control the room.
“What happens is that a fight breaks out between two people; all of a sudden, someone gets injured as a result of that fight, and the people that beat the guy up are gone. By the time the doorman can get there or even learn of it, it’s over.
“It’s problematic because usually the assailants are gone, the only person left is you, and there could be joint and several liability in those situations. All they have to do is find 1% fault. So this is a bit of a red-flag issue for me.”
Folick said insurers underwriting this form of risk should be aware of whether large establishments have installed video surveillance, and whether such establishments have appropriate policies to preserve the video evidence for an appropriate length of time.
Also, the establishment is responsible for controlling its exterior premises as well as its interior premises. “Because you are [exposed] to the degree that there are things going on outside in the parking lot,” Folick said.
“If you control the premises outside, you may indeed have to go out there and contain what is going on outside – especially if you know there has been violence in the parking lot, or if there has been a situation in which drugs have been taken outside into the parking lot.”