It being so close to Christmas, my wife encouraged me to write a lighthearted column.
One of her ideas was to plagiarize Francis Church’s Sept. 21, 1897, editorial response to Virginia O’Hanlon, passionately asserting that Santa Claus most certainly exists.
I tried to come up with a lighthearted column topic, but failed.
My thoughts about Christmas led me to feel compelled to write about a very serious issue that will arise on Christmas Eve.
Particularly in the few days leading up to Christmas Eve, we are all extra nice to each other, hoping that we end up on the “nice” list.
We decorate a tree and hang our stockings.
Our little ones take great delight in leaving a little snack for the jolly old elf, along with a few carrots for the reindeer.
We all then bumble off to bed, each of us struggling through the excitement to fall asleep as quickly as possible.
We want to be sure we are asleep before Santa Claus shows up because, of course, he knows if we are sleeping and knows if we are awake.
All the lights in the house are off, except for the decoration lights on the Christmas tree.
Visions of sugar plums dance in our heads as we fall asleep, anxious for the morning to come when we will find the treasures that Santa Claus has left for us.
What concerned me, quite deeply, when I pondered this course of events was our lack of regard for Santa Claus’ safety.
The more I thought about it, the more concerned I became.
Do we give any thought to dousing, or more likely turning off, the fireplace before we go to bed?
If we do not have a fireplace, do we consider Santa’s most likely access points for safe entry?
What about leaving a light on so that Santa Claus can navigate his way past our furniture to get to the tree?
The cookies and milk are a particular concern.
Anyone with “food safe” training knows that milk left in the “danger zone,” above 4 C, can develop dangerous pathogens that could make Santa Claus seriously ill.
We make a song about how grandma got run over by a reindeer, but we show no concern about Santa’s safety.
Perhaps we do not realize that, totally aside from a moral and ethical duty, we owe Santa Claus is legal duty to ensure he will be reasonably safe when in our home.
By leaving stockings hung to be filled, and a snack sitting on the counter, there is no way we could maintain the position that Santa Claus was trespassing, if he is injured, or becomes ill, as a result of a hazard in our home.
But don’t think that taking down the stockings and leaving the cookies in the bag will save you from liability.
The Occupiers Liability Act is a piece of provincial legislation that makes you liable even if Santa Claus is found to be trespassing.
The only exception would be if Santa Claus was trespassing for the purpose of committing a criminal act.
You would be hard-pressed to establish to the court that Santa’s purpose in filling your stockings and leaving presents under your tree is criminal.
Aside from Santa’s own claim, imagine the class action lawsuit that could arise from such a tragedy, the “class” including every good little boy and girl in the world.
I encourage you to carry lots of insurance.
The most effective protection, though, is one that shows your concern for the safety of others.
Insurance is just there for when your level of concern doesn’t measure up, whether it’s showing a lack of concern for visitors to your home or to those who share the roads with you.
The very best personal injury claim is no claim at all.
I wish all of you, and Santa Claus, a safe holiday season and the very best in the new year.
This column is intended to provide general information about injury claims. It is not a substitute for retaining a lawyer to provide legal advice specifically pertaining to your case. Paul Hergott is a lawyer at Hergott Law in West Kelowna.