The Slip on the Staircase and the Third-Party Claim
A residential landlord, Les Immeubles Côté, is insured under a commercial general liability policy with $2,000,000 limits. A visitor, Mr. Bouchard, slipped on an exterior staircase during an ice storm and fractured his wrist. He had come to visit a tenant and was carrying a large box that obscured his view of the steps. The staircase had a handrail on one side only, and the landing light was burned out. The lease obliges the landlord to maintain common areas. The insurer receives notice six weeks after the accident, along with a demand letter for $60,000. The adjuster's initial inspection finds that the ice had been salted the morning of the accident by the landlord's maintenance contractor, but the light had been out for at least three weeks according to the tenant. The policy contains a standard care, custody and control exclusion and an expected or intended injury exclusion.
1. Assess the liability exposure and identify the Civil Code concepts the adjuster must apply.
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The adjuster should structure the analysis around three Civil Code concepts.
1. Custodian's liability for things. The landlord is the custodian of the staircase. Under the Civil Code of Québec, the custodian of a thing is liable for damage caused by its autonomous act, unless it proves no fault, or that the damage resulted from a superior force or from a third party for whom it is not responsible. The staircase's defective lighting and single handrail are arguably an autonomous defect of the thing. The landlord's best defence is that it acted prudently and that the ice storm was a superior force.
2. Fault and the reasonable-person standard. Even if the custodian defence is displaced, the landlord's conduct must be measured against what a prudent and diligent landlord would do. Salting the steps the same morning is favourable evidence. A light out for three weeks is not: the landlord had constructive knowledge and failed to repair.
3. Contributory fault. Mr. Bouchard carried a box that obscured his view and did not use the available handrail. Under the Civil Code, the victim's own fault reduces the compensation. The adjuster should quantify a realistic reduction, often 20–40% in comparable circumstances.
The care, custody and control exclusion is unlikely to apply: the staircase is a common area, not property in the insured's care under a contract of custody, and the claimant is not the insured's customer. The expected or intended injury exclusion is inapplicable because there is no intent to injure.
2. How should the adjuster handle the six-week delay and the demand, and what reserve is appropriate?
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Delay. Six weeks is not egregious for a landlord reporting a slip-and-fall. The adjuster should confirm whether the landlord preserved the scene, whether the burned-out bulb was replaced (and when), and whether the maintenance contractor's salting records exist. Prejudice is limited because the physical conditions can still be reconstructed from tenant statements, maintenance logs, and weather data. The adjuster should send a reservation-of-rights letter noting the delay but should not treat it as a coverage defence unless specific prejudice emerges.
Reserve. The reserve should reflect probable ultimate cost, not the demand. A reasonable approach:
- Assess liability at 50–60% on the current evidence, given the light and the single handrail;
- Estimate damages for a fractured wrist at $25,000–$40,000, including pain and suffering, income loss, and rehabilitation;
- Apply contributory fault of 25–35%;
- Add investigation and defence costs.
That yields a probable-cost range of roughly $12,000–$20,000, and the reserve should be set within that range with a note explaining the assumptions. The adjuster should also confirm that defence costs are inside or outside the limit, since that affects the reserve.
The adjuster should request the maintenance contractor's records, the tenant's written statement, the medical file, and photographs of the staircase, and should consider an independent medical examination if the wrist injury is disputed.