July 18, 2020, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Al Fresco Dining Here to Stay, but Risk Needs to Be Managed
Nick de Koning
The COVID-19 pandemic has caused a tremendous upheaval all around the world. As time goes by and medical knowledge increases about the method of transmission of the virus, we have learned that there is a much higher risk of transmission of the virus in indoor environments. A study in Japan suggested that the risk of infection indoors is about 19 times higher than in an outdoor environment. Accordingly, as part of the Phase 2 re-opening plan for businesses in Ontario, restaurants were permitted to offer outdoor patio service but not indoor service. The recently announced plan for Phase 3 will permit restaurants in some regions of Ontario to offer indoor dining as of Friday July 17, 2020. However, it seems likely that patio dining, and a shift towards the outdoors for commercial activity generally, will be a major trend going forward. Restaurants that are not equipped with a patio could set up ad hoc patios on sidewalks or in parking lots, possibly beyond their actual property limits. By the same token, in their own private homes, Ontarians may well be more comfortable with entertaining guests in their backyards as opposed to inside the home.
While this is all well and good for the people of Ontario who wish to resume a more normal lifestyle after months of lockdown, this trend also raises the possibility of accidents, and ensuing liability on restaurant operators and homeowners, if appropriate measures are not taken to ensure the safety of invitees in these outdoor settings.
Our firm has already had some inquiries from individuals who have, for example, been injured by falling outdoor patio umbrellas that were improperly secured. Other possible problems that come to mind include inadequate lighting, spilled food and drink, accumulations of water on the ground, and slip and trip hazards. Restaurant lighting is often low to create a certain ambiance, which is more acceptable in an indoor environment. However, inadequate lighting may conceal hazards in an outdoor setting, including issues that might not be a hazard in normal daytime lighting, such as curbs or single steps.
Generally, liability for premises, whether commercial or residential, is governed by the Occupiers’ Liability Act (“OLA”). The OLA imposes a standard of care of reasonableness on “occupiers” which includes persons who are actually physically in possession of premises or activities carried on, and/or have control over persons allowed to enter the premises. Generally, the owner of one property is not going to be liable for injuries suffered on an adjacent property, but there are exceptions including where the property owner has “assumed” control over the adjacent property. One simple example would be where a restaurant sets up a patio (with explicit permission or not) on adjacent property such as a municipal sidewalk, or plaza parking lot or walkway.
A notable example of this which is relatively recent (but prior to the pandemic) is the 2017 Ontario Court of Appeal decision in MacKay v. Starbucks. The Starbucks outlet was on two busy intersecting streets in Toronto. There was an entrance on each street. One of the entrances featured a small outdoor patio adjacent to the City sidewalk. There was no clear demarcation between the City sidewalk and patio. The Court found that Starbucks was liable for the plaintiff’s fall on the City sidewalk since it had assumed control of that portion of the sidewalk, which was used almost exclusively by Starbucks’ customers.
Going forward, restaurant operators and homeowners alike will need to be vigilant in terms of ensuring a safe environment for guests as entertaining and dining outdoors becomes a more commonplace feature of life in Ontario.
The foregoing article is intended for general information purposes and is not intended to be legal advice for any specific situation. If you have been injured while a guest at a restaurant or private residence, feel free to contact our office at 519-742-7774.
 The Atlantic, www.theatlantic.com/ideas/archive/2020/05/how-will-we-ever -be-safe-inside/611953