Q: I live on a private development that includes a children's playground which is covered by public liability insurance and maintained by the Residents' Association under a board of elected property owner directors.
Some of the playground equipment on the site is worn and needs attention, but instead of instructing repairs the directors have put up a sign saying children must be supervised by an adult and anyone using the equipment does so at their own risk. Is such a sign lawful to the extent that no-one could sue if there was an accident due to poorly maintained equipment?
A: A warning sign is not a guarantee that a landowner or occupier cannot be sued. By placing a sign at the entrance to the premises, e.g. "visitors enter at their own risk", the occupier of the land may be able to stop entrants successfully suing in negligence for damage or injury caused by the unsafe nature of the premises. This would however not be the case if the occupier was a business inviting visitors onto their property.
However, the occupier still has a duty to take reasonable steps to ensure that a visitor will be reasonably safe from injury and no warning sign can protect an occupier if a court deems that that duty has been breached. The key fact is whether or not a court would find the warning sign was sufficient to override the occupier's duty of care and whether it was appropriate to the level of danger present.
If an accident was caused by poorly maintained equipment then it is certainly open to the court to make a finding of negligence regardless of any warning sign and regardless of the nature (private or business) of the occupier. This is a complex area and independent legal advice should certainly be sought.