Written By: Jessica Golosky, Personal Injury Lawyer and Alexia Donis, Summer Law Student
We often hear the phrase "blood is thicker than water.” As a society, we honour family relationships with esteem and attribute essential child-rearing responsibilities to parents or legal guardians. Failure to do so can be seen as negligence. But what happens when the child is grown, and an injury occurs in the family home? This blog post will outline the obstacles that accompany intra-household lawsuits, and ultimately, who is eligible to make a claim for negligence.
The family exclusion clause complication
It is now commonplace for homeowner and renter insurance policies to contain an indemnity limitation known as a "family exclusion clause"." These clauses effectively bar actions for bodily injury against those living in the same household. An exception may be found where the claimant is a residence employee, such as a nanny. However, simply carrying out household chores does not qualify as “employment”. A residence employee must perform duties for the insured and receive valuable consideration. It is important to pay attention to the specific language used in the family exclusion clause and to compare it to the overall policy and other insurance coverage. Specific wording, context, and judicial interpretation of identical or similar exclusions will ultimately define the scope of the limitation and whether it is indeed applicable. Although such clauses do not prevent legal actions from arising, they often play a decisive role in collecting damages if insurance coverage for the occurrence is excluded. Take, for example, an adult child suing his or her parents for negligence after sustaining an injury in the family home. In the event of the child’s legal success on the merits of the claim, the parents would personally be liable for any damages. They may also be liable for their own legal expenses unless their insurer has a duty to defend them, even if there is no duty to indemnify due to the exclusion
What constitutes a household?
The Courts have been called upon to interpret the meaning of 'household' in order to assess whether a family exclusion provision applies. The longstanding definition adopted by the Supreme Court (The Wawanesa Mutual Insurance Company v Bell, [1957] SCR 581 at 584, 8 DLR (2d) 577) views the household as a ‘community’. Interestingly, constant presence or proximity is not a determining factor. Instead, Courts recognize the paramountcy of an intentional bond that cohesively forms (and what some more strictly imagine as) a family unit. Household ‘membership' is assessed holistically. But this approach is not simple. Despite co-residence or perceived unity, an individual may still be deemed a "separate entity of life". In this case, the individual is living his or her life fundamentally separate from those living in the defined household. The converse may also be true. For example, university students can still be classified as members of their parents’ household, even when they reside in separate quarters during the academic year. Thus, a student who returns home to visit family during a school break and injures herself in the home, could find herself without an insurer-funded remedy if negligence on the part of homeowner is established. Similarly, an individual absent from the household for extended periods due to work or estrangement can still be seen as a member of the household provided there’s an intention to return home.
Occupier's liability
At the end of the day, quite apart from the above nuances, an occupier of premises owes a duty to take reasonable care to ensure that all persons entering the premises, and the property brought onto the premises, are reasonably safe. This duty does not fall short when it comes to other occupiers who are injured, nor is the duty altered (although the insurance picture might be) by reason of a family exclusion clause. Recent case law interpreting the Occupier's LiabilityAct has held that one occupier may sue another occupier for a breach of duty (Nolet v Fischer 2018 ONSC 5771). Whether an occupier is simply a visitor or a resident of subject premises, an action can follow.
Experienced premise liability lawyers
If you or a loved one has been injured at the family home, please contact one of our occupiers’ liability lawyers to have an experienced personal injury lawyer review the facts and consider whether a lawsuit can reasonably be established. Proving negligence can be a challenge, but seeking legal help provides the best chance at fighting a strategic occupier’s liability claim. Contact us today.