MEMORANDUM
To: Professor Homer Simpson
Date: October 20, 2022
RE: Likelihood of University of the Interior being Liable for Grady’s Injury
1. INTRODUCTION
You have asked me to prepare a memorandum assessing the likelihood that a court will find the
University of the Interior (UI) liable for Grady’s injuries. The primary parties involved are our client,
Grady, a student at UI and the potential defendant, UI, the owner of the land that Grady was
injured on. This issue falls under the Occupiers Liability Act, R.S.B.C. 1996, c. 337 [Occupiers
Liability Act], the Negligence Act, R.S.B.C. 1996, c. 333 [Negligence Act], and an action can be
taken under tort law. For the purposes of this memorandum, the research was limited to the an
analysis of the cases you provided as materials for this assignment.
2. FACTS
At sundown, Grady, a student at UI was on their way to write an exam at Olde Hall. Olde Hall is
located east of The Stroll and has one entrance at the front of the building that is connected to The
Stroll by a paved walkway. The back of Olde Hall has a grassy area and a small grassy hill that
ends at The Stroll. At the top of the hill, UI staff had created a snowbank. Due to sunny weather in
the days preceeding Grady’s exam, the snowbank had been melting and formed a puddle at the
base of the hill. On the day of Grady’s exam, the weather was cold and froze the puddle. There
was now a section of ice that was 10ft long and varying widths (6-12in.).
Grady made their way to his exam by walking down the stroll from the back of the building. Instead
continuing along the stroll and making a left at the paved walkway that would lead to the entrance
of Olde Hall, Grady decided to take a shortcut through the grassy hill and grassy area and walk
around the building to the front. This would save them less than a minute.
Grady walked quickly down the hill behind Olde Hall and, without noticing it, stepped on the patch
of ice at the base of the hill. Upon stepping on the ice, Grady slipped and fell, breaking their wrist.
A diagram of the scene is below:
N
entrance
Hill
Olde
Hall
Location
of Fall
3. ISSUES
Could UI be found liable under s. 3 of the Occupiers Liability Act for injury sustained by Grady
when he took the shortcut to Olde Hall? If Grady’s claim is established, could UI succeed with a
defense of contributory negligence assigining Grady equal or greater fault in accordance with the
Negligence Act.
4. DISCUSSION/ANALYSIS
4.1 Relevant Legislation: Occupiers Liability Act
Section 3: Occupiers' duty of care
3(1)
An occupier of premises owes a duty to take that care that in all the circumstances
of the case is reasonable to see that a person, and the person's property, on the
premises, and property on the premises of a person, whether or not that person
personally enters on the premises, will be reasonably safe in using the premises.
(2)
The duty of care referred to in subsection (1) applies in relation to the
(a)
(b)
(c)
(3)
condition of the premises,
activities on the premises, or
conduct of third parties on the premises.
Despite subsection (1), an occupier has no duty of care to a person in respect of
risks willingly assumed by that person other than a duty not to
(a)
(b)
create a danger with intent to do harm to the person or damage to the
person's property, or
act with reckless disregard to the safety of the person or the integrity of the
person's property.
4.2 Relevant Legislation: Negligence Act
Section 1: Apportionment of liability for damages
1(1)
If by the fault of 2 or more persons damage or loss is caused to one or more of
them, the liability to make good the damage or loss is in proportion to the degree to
which each person was at fault.
(2)
Despite subsection (1), if, having regard to all the circumstances of the case, it is
not possible to establish different degrees of fault, the liability must be apportioned
equally.
(3)
Nothing in this section operates to make a person liable for damage or loss to which
the person's fault has not contributed.
4.3 Interpretation of Legislation and Case Law Analysis
In Dandell v. Thompson Rivers University1[Dandell], a similar case in which a student was injured
on their way to a building when they took a shortcut through a grassy hill that would save them 11
seconds, the B.C. Court of Appeal held the defendents met their duty of care under S. 3(1) of the
Occupiers Liability Act. J. Lowry writes2:
Here there was a well-maintained access to the building the university intended students
like Mr. Dandell to use rather than taking the shortcut. It would have taken him only 11
more seconds. Far from being arguably irrelevant, the university’s positive action to
maintain a safe access to the building was clearly a proper and significant factor in the
judge’s application of the legal standard of reasonableness in all of the circumstances.
In Whitney v. University College of the Cariboo3[Whitney], another case in which a student injured
themselves taking an unofficial shortcut, the court ruled that the University breached their duty of
care under s. 3(1) of the Occupiers Liability Act. In this case, a student injured themselves on
1
Dandell v. Thompson Rivers University, 2013 BCCA 490 at 10-12.
Ibid. at 12
3
Whitney v. University College of the Cariboo, 2004 BCSC 1110 at 72
2
1
exposed metal wire from baskets that the college used to store trees in a commonly accessed but
unofficial shortcut in an undeveloped area of the campus4. The court ruled that while the college
did not have a duty to maintain undeveloped areas and trails as if they were designated pathways,
when they began using metal baskets in the area, and allowed students to continue using the trail
without objection, they had a duty to ensure that the trail remained free of at least their own wire5.
Liability was offset by the plaintiff’s own negligence with J. Truscott writing:
She knew it was an undeveloped area and she could expect to meet hazards on or around
the path and she had a duty, in my opinion, to observe the ground where she was walking.
I consider her negligence to be equal to any negligence of the college6.
The court apportioned damages for the plaintiff 50%7.
In both cases, the schools were aware of the shortcuts’ regular use by students8 and had safe
pathways available9. There was a difference in the time saved. In Dandell10, the time saved was 11
seconds, which the court considered to be relevant, and in Whitney11, the time saved was 5-10
minutes which the court didn’t give any consideration to. In Grady’s case, UI did provide a safe
pathway, but it isn’t known if the shortcut was regularly used by students, if the school made any
efforts to restrict student access and if Grady knew that there was ice at the bottom of the hill. Like
Dandell, Grady saved negligble time taking the shortcut and experienced substantial injury. In
Dandell, the court did not consider whether the risk of injury could have been prevented by the
university, instead focusing on the fact that they provided a safe pathway and the plaintiff accepted
the risk by going down the “visibly icy slope12”.
5. CONCLUSION
It is unlikely that UI will be found liable for Grady’s injuries. The decision in Dendell is from an
appellate court and the decision in Whitney is at the trial level. Grady may be able to distinguish
their case from Dandell if they were not and it would be considered reasonable that they were not
aware of ice at the bottom of the hill behind Olde Hall, thus not accepting the risk of going down a
potentially dangerous hill – but an argument will likely be made that the Grady should have taken
the obvious safe path. If UI is deemed to have breached their duty of care under the Occupier’s
Liability Act, Grady can expect to be assigned some liability and damages be apportioned
potentially nullifying a successful claim as seen in Whitney13.
4
Ibid. at 12
Ibid. at 68-72
6
Ibid. at 74
7
Ibid. at 80
8
Ibid. at 71 and Supra note 1 at 7
9
Ibid. at 51 and Supra note 1 at 13
10
Supra note 1 at 12
11
Supra note 3 at 7
12
Supra note 1 at 4
13
Supra note 3 at 80-81
5
2