On a private road clearly marked Use At Your Own Risk, would the cottage owners, who share the cost of maintenance, be liable if a delivery truck went off the road due to icy conditions?
—Alan Smith, via e-mail
Possibly. “Can they be sued? Yes,” says Peter Lillico, a lawyer with law firm Lillico Bazuk Kent Galloway in Peterborough. “Will they be successfully sued? It depends on the circumstances.”
First of all, good call posting the sign. “That sign is golden,” says Rusty Russell, a lawyer with Russell Christie in Orillia.
“It’s the best thing they ever put up.” The sign definitely works in the cottagers’ favour, but it doesn’t make them immune to litigation, cautions Lillico.
“It always boils down to: Were the cottage owners negligent?” The delivery company would have to prove this. If the road were washed out, and the company could show that the cottagers knew this, didn’t take any steps whatsoever to fix the problem, and called for the delivery anyway, a court may find the cottagers responsible. All the cottagers who share in the maintenance costs could be held liable—not just the registered owners of the land over which the private road passes—but liability coverage in their cottage insurance policies would likely cover any claims.
Posting more explicit signs, such as Danger and 10 km/h, would help to further protect the cottagers from a lawsuit, says Lillico. And if a hellacious ice storm hits the area, consider postponing the delivery. Nobody needs a new mattress that badly.
This article was originally published in the Winter 2012 issue of Cottage Life.