The Daniels v. McKelvey court decision, released on January 22, 2010 by the Court of Queen’s Bench of Manitoba in Winnipeg, is an occupier’s liability claim that arises out of tragic events of December 2007, when Nathan Starr, 14 years old, died in a fire at the home of Defendants, McKelveys.

Nathan’s parents hired a Winnipeg Personal Injury law firm to sue the owners of the house on the grounds of negligence. 

The Defendants and their children lived in an older three-storey house in Winnipeg with two entrances, a main door at the front and a boarded shut side door.  On the night of the tragic accident Jessica McKelvey and Nathan Starr, Jessica’s boyfriend, were lying on Jessica’s bed listening to music on the third floor of the home, when at 1:30 am, two men, meaning to set fire to a drug dealer’s house, mistakenly set fire to the Defendants’ home. 

Fortunately, two officers patrolling the area saw the men and alerted dispatchers but where unable to catch the two men or stop the fire. Within minutes the front door became engulfed in flames and after searching for an opening to enter the house, the officers smashed a window at the back of the house and helped ten panicked people escape.

Unfortunately, Nathan was found later by firefighters lying on the bed in Jessica’s bedroom. He had died from smoke inhalation. The entire episode took less than 5 minutes.

At trail, the plaintiffs alleged that the defendants were negligent because they failed to have working smoke alarms in the house and the boarded shut entrance impeded the ability to rescue Nathan from the fire. The court agreed that under The Occupiers’ Liability Act the defendants owed a duty to Nathan Starr to take reasonable care that he would be reasonably safe while on their property and unharmed from reasonably foreseeable events, such as a fire.

There were two smoke detectors at the home, which had previously gone off, though no one recalled hearing them on this night. The court stated that there was no evidence that the defendants failed to maintain the smoke detectors therefore there was no breach of duty for the smoke detectors.

As for the boarded shut back door, both parties agreed that the “but for” test was the applicable test, as in ‘but for’ the boarded door Nathan would have escaped or been rescued.  However, since it was the actions of the two men who set the fire to the defendants’ home that were the primary cause of Nathan’s death and Nathan was found lying on a bed in the bedroom where Jessica had left him, there was no evidence to suggest that he ever tried to leave the room. At trial, the officers stated making an effort to look for Nathan but smoke and fire prevented efforts. Here also, the court stated there was insufficient evidence to establish negligence.

At the case’s conclusion, the court stated that there was no established evidence that Nathan would have lived but for the actions of the defendants. The action was dismissed.

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