Contributory Negligence - Homeowner Partly at Fault

March 23, 2010, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

In a recent case in Alberta (Mahe v Boulianne, Alberta Court of Appeal) a homeowner hired an electrician to connect wiring on his property. The electrician suffered serious injury and was paralyzed after he fell 20 feet off a ladder that had been leaning against a pole on the homeowner’s property. The electrician was cutting wires at the top of the pole and after he cut the last or second last wire the pole twisted and shook and he fell to the ground. The pole was found to be rotted at the base. Evidence at trial disclosed that the homeowner was aware of the risk that the pole posed if it was used to support a ladder while the wires were being cut. The evidence showed that the electrician never considered any other methods for accessing the pole. The homeowner watched the entire operation and never made any attempts to intervene as the electrician mounted the ladder. The trial judge found the homeowner to be 75% at fault and the electrician to be 25% at fault.

 
The homeowner appealed this finding. The Alberta Appeal Court felt that the trial judge did have enough information to find some liability on the part of the homeowner in the failing to warn the electrician of the condition of the pole. However, the Appeal Court did not feel it was appropriate to find liability on the part of the homeowner on the other grounds noted by the trial judge. The findings that the homeowner failed to direct and supervise the work of the electrician could not support liability on the part of the homeowner. There was no expectation on the part of the electrician that the homeowner had taken any responsibility for supervising the work. The trial judge also misstated the test when he held that the homeowner failed to ensure that the electrician was reasonably safe in carrying out the work requested. As the occupier of the premises, the homeowner had to ensure that the premises were reasonably safe. There was no duty to monitor whether the practices of the professional electrician were safe. The work itself had certain inherent risks that were well known to the electrician, including falling down. The electrician assumed responsibility for the work without direction from anyone else, including the homeowner. The electrician failed to use a safety harness. The electrician was aware that there was a risk that the pole would twist and vibrate when the lines were cut. The Appeal Court held that the electrician’s fault was greater than the homeowners in these circumstances. The electrician was found to be 60% at fault.
Posted under Personal Injury, Catastrophic Injury, Slip and Fall Injury

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