The City of London has successfully defended a slip and fall action that occurred following a winter storm. In Bondy v. London (City), [2013] O.J. No. 1281 (S.C.J.), the plaintiff slipped and fell on the paved portion of the boulevard abutting the city sidewalk, which was used to access her driveway. The night before the plaintiff fell there was a heavy freezing rain storm, which continued throughout the night and into the morning. Schools were closed and radio announcements recommended citizens stay off roads and sidewalks. The adjacent property owned salted the sidewalk but not the boulevard. The City decided to call in its sidewalk equipment operators at midnight and they were deployed at 4:30 a.m. In the area of the plaintiff's fall, operators were deployed from 7:30 a.m. to 5:30 p.m., with the route taking 12-14 hours to complete.
The case involved a number of issues, including whether the boulevard qualified as an untravelled portion of the highway, whether adjacent property owner was liable for failing to salt the boulevard, whether the Municipal Act or Occupier's Liability Act applied, and the standard of care for the municipality. Justice Gorman held that the boulevard was not part of the untravelled portion of the highway. In addition, the City could not deflect liability onto the adjacent property owner in the circumstances, as they did not exercise control over the area.
Ultimately, Justice Gorman held that the City had met its standard of care. It had complied with the Minimum Maintenance Standards for icy roadways. The plaintiff was entitled to expect a highway to be in a good condition, but "when the weather is so treacherous as to require the broadcast of public warnings, one travels at one's peril". Although the action was dismissed, the decision that the boulevard was not part of the untravelled portion of the highway poses a problem: are municipalities now expected to salt these areas?
A weekly update of cases pertaining to the practice of insurance defence.
Showing posts with label Sidewalks. Show all posts
Showing posts with label Sidewalks. Show all posts
April 24, 2013
August 23, 2011
Gross Negligence Standard for Municipal Sidewalks
In Richer v. Elliot Lake [2001] ONSC the plaintiff slipped and fell on ice on a sidewalk. In accordance with s. 44(9) of the Municipal Act, the standard of care is lowered from ordinary negligence to gross negligence.
Koke J. referred to the 1927 Supreme Court of Canada decision, Holland v. City of Toronto, that defined gross negligence as “very great negligence”. Thum v. Elliot Lake [1999] O.J. No. 3158 held that the degree of negligence is context specific and listed elements to consider: 1) notice of the existence of a dangerous condition which authorities actually had or which should be imputed to them; 2) their opportunity to remedy it; 3) the state of weather immediately before the accident; and 4) the relative situation of the place where the accident occurred.
In the current case, the court found as a fact that there had been a thaw-freeze cycle, there was a sheet of ice which caused the plaintiff to fall, there was no evidence of any sand at the scene, city crews had been sent out to clear and sand the streets and sidewalks following the snow fall, and there were not any other reported complaints that evening.
Koke J. appears to have given the most weight to the plaintiff’s own testimony that he walked to work that morning and walked about ¾ of a kilometer after leaving work before falling. He stated that he didn’t have any problems walking on the sidewalks prior to the fall.
The court held that overall the plaintiff was not able to show that on the evening in question the condition on the city’s sidewalks was generally slippery or icy. There was nothing to suggest this was not an isolated incident. Koke J. went on to say that even if the court were to find the city negligent for not spreading sand on the sidewalk at that location, this would constitute negligence, not gross negligence.
Koke J. referred to the 1927 Supreme Court of Canada decision, Holland v. City of Toronto, that defined gross negligence as “very great negligence”. Thum v. Elliot Lake [1999] O.J. No. 3158 held that the degree of negligence is context specific and listed elements to consider: 1) notice of the existence of a dangerous condition which authorities actually had or which should be imputed to them; 2) their opportunity to remedy it; 3) the state of weather immediately before the accident; and 4) the relative situation of the place where the accident occurred.
In the current case, the court found as a fact that there had been a thaw-freeze cycle, there was a sheet of ice which caused the plaintiff to fall, there was no evidence of any sand at the scene, city crews had been sent out to clear and sand the streets and sidewalks following the snow fall, and there were not any other reported complaints that evening.
Koke J. appears to have given the most weight to the plaintiff’s own testimony that he walked to work that morning and walked about ¾ of a kilometer after leaving work before falling. He stated that he didn’t have any problems walking on the sidewalks prior to the fall.
The court held that overall the plaintiff was not able to show that on the evening in question the condition on the city’s sidewalks was generally slippery or icy. There was nothing to suggest this was not an isolated incident. Koke J. went on to say that even if the court were to find the city negligent for not spreading sand on the sidewalk at that location, this would constitute negligence, not gross negligence.
April 6, 2011
Gross Negligence
The Court of Appeal for Ontario has upheld a decision which found that the City of Mississauga’s response to a winter storm event was reasonable, Billings v. Mississauga (City), 2011 ONCA 247, [2011] O.J. No. 1449 (C.A.).
The plaintiff, Douglas Billings, claimed injuries suffered in a slip and fall accident on a City sidewalk following a major snow and ice storm.
The sidewalk in question had not been cleared of snow and ice within 36 hours after the winter storm. The City’s snow removal policy required that snow and ice be removed from sidewalks within 36 hours and the City had failed to meet that target. Nevertheless, the trial judge found that the storm had been an extraordinary event. The trial judge carefully reviewed the City’s systems, personnel and policies for dealing with snow storms and concluded that the City’s response to the storm was "completely reasonable." The City’s response to the storm did not amount to “gross negligence”, which is the standard mandated by statute.
The Court of Appeal agreed with the trial judge’s conclusion.
This case should assist municipalities in defending claims of personal injury caused by snow or ice on a municipal sidewalk. It is interesting that the City was found to have acted reasonably even though it did not meet its objective of clearing snow and ice from sidewalks within 36 hours after a storm event.
The plaintiff, Douglas Billings, claimed injuries suffered in a slip and fall accident on a City sidewalk following a major snow and ice storm.
The sidewalk in question had not been cleared of snow and ice within 36 hours after the winter storm. The City’s snow removal policy required that snow and ice be removed from sidewalks within 36 hours and the City had failed to meet that target. Nevertheless, the trial judge found that the storm had been an extraordinary event. The trial judge carefully reviewed the City’s systems, personnel and policies for dealing with snow storms and concluded that the City’s response to the storm was "completely reasonable." The City’s response to the storm did not amount to “gross negligence”, which is the standard mandated by statute.
The Court of Appeal agreed with the trial judge’s conclusion.
This case should assist municipalities in defending claims of personal injury caused by snow or ice on a municipal sidewalk. It is interesting that the City was found to have acted reasonably even though it did not meet its objective of clearing snow and ice from sidewalks within 36 hours after a storm event.
March 30, 2011
Action dismissed due to failure to comply with Municipal Act notice provision
Zogjani v. Toronto (City), [2011] O.J. No. 1002 (S.C.J.)
In this slip and fall case against the City of Toronto, the City brought a motion for summary judgment on the basis that the plaintiff failed to comply with the 10 day notice period provided by section 44(10) of the Municipal Act. The plaintiff slipped and fell on December 22, 2005 on snow and ice on a Municipal sidewalk. She consulted a lawyer in February 2006 and notice was provided to the City on March 1, 2006. The plaintiff swore that until she met with the lawyer on February 28, 2006, she was not aware of the 10 day notice requirement in section 44. Since the plaintiff failed to comply with section 44(10), it was her onus to show that she fit within subsection 44(12) of the Municipal Act, which provides that the failure to give notice is not a bar to the action if a judge finds that there is reasonable excuse and the Municipality is not prejudiced in its defence.
The City’s argument was that because it did not receive notice of the claim in a timely manner, the City’s investigator was unable to investigate the location promptly and could not observe or record the conditions of the location at the time of the accident. The plaintiff’s response was that snow would have melted in the days immediately following the incident and so even if the 10 day notice period had been met, there was no practical prejudice to the City.
The City’s field investigator swore an Affidavit indicating that he patrolled the area 4 days before the date of loss and 6 days after the date of loss. If he had been notified immediately, he would have been able to recall what the road and sidewalk conditions looked like during his patrols; however, because the City did not receive notice until 2 ½ months later, he was unable to recall what the location looked like at the time of his patrols.
Justice Lauwers was satisfied that the Municipality was practically prejudiced by the effect of the delay on the field investigator’s memory. He granted summary judgment.
At times it may seem that section 44(10) is a limitation period without teeth; however, in the right circumstances and with the right evidence proffered on a motion for summary judgment, section 44(10) can be a useful tool with which to dispose of an action at an early date.
In this slip and fall case against the City of Toronto, the City brought a motion for summary judgment on the basis that the plaintiff failed to comply with the 10 day notice period provided by section 44(10) of the Municipal Act. The plaintiff slipped and fell on December 22, 2005 on snow and ice on a Municipal sidewalk. She consulted a lawyer in February 2006 and notice was provided to the City on March 1, 2006. The plaintiff swore that until she met with the lawyer on February 28, 2006, she was not aware of the 10 day notice requirement in section 44. Since the plaintiff failed to comply with section 44(10), it was her onus to show that she fit within subsection 44(12) of the Municipal Act, which provides that the failure to give notice is not a bar to the action if a judge finds that there is reasonable excuse and the Municipality is not prejudiced in its defence.
The City’s argument was that because it did not receive notice of the claim in a timely manner, the City’s investigator was unable to investigate the location promptly and could not observe or record the conditions of the location at the time of the accident. The plaintiff’s response was that snow would have melted in the days immediately following the incident and so even if the 10 day notice period had been met, there was no practical prejudice to the City.
The City’s field investigator swore an Affidavit indicating that he patrolled the area 4 days before the date of loss and 6 days after the date of loss. If he had been notified immediately, he would have been able to recall what the road and sidewalk conditions looked like during his patrols; however, because the City did not receive notice until 2 ½ months later, he was unable to recall what the location looked like at the time of his patrols.
Justice Lauwers was satisfied that the Municipality was practically prejudiced by the effect of the delay on the field investigator’s memory. He granted summary judgment.
At times it may seem that section 44(10) is a limitation period without teeth; however, in the right circumstances and with the right evidence proffered on a motion for summary judgment, section 44(10) can be a useful tool with which to dispose of an action at an early date.
June 23, 2010
More on Crinson v. Toronto, 2010 ONCA 44.
Two days ago I blogged on a comment left from an Indian lawyer to my blog of February 27, 2010.
That discussion revolved around the Ontario Court of Appeal's decision in Crinson v. Toronto (City), 2010 ONCA 44.
The case has received attention in an article by Stuart Huxley, legal counsel, City of Ottawa, in a case comment printed in the Municipal Liability Risk Management journal, (2009-10) 11 Mun. L.R. Mgt. (Volume 11, Number 4).
In that article, Mr. Huxley helpfully reviews the history of the Court of Appeal decision and noted that the trial judge had found that the plaintiff was in the hospital for five days after the trip and fall, which included surgery, and during that period was on morphine and Tylenol. The plaintiff was drowsy and "out of it". Following his discharge from the hospital, the plaintiff took Percocets for two weeks. Despite this medication, the trial judge held that the plaintiff was not so incapacitated that he was unable to arrange for the required notice to be given to the municipality. Thus the plaintiff's claim was held to be statute barred by the trial judge.
The Court of Appeal reversed. The Court of Appeal held that there was ample evidence to support "reasonable excuse".
Mr. Huxley concludes his article with the realistic comment that failture to give notice as required by the Municipal Act, 2001 months after an accident will require a municipality to consider whether to push the notice defence. Questions that municipalities will continue to face will be whether or how a municipality should defend such actions or whether they should just concede and pay.
That discussion revolved around the Ontario Court of Appeal's decision in Crinson v. Toronto (City), 2010 ONCA 44.
The case has received attention in an article by Stuart Huxley, legal counsel, City of Ottawa, in a case comment printed in the Municipal Liability Risk Management journal, (2009-10) 11 Mun. L.R. Mgt. (Volume 11, Number 4).
In that article, Mr. Huxley helpfully reviews the history of the Court of Appeal decision and noted that the trial judge had found that the plaintiff was in the hospital for five days after the trip and fall, which included surgery, and during that period was on morphine and Tylenol. The plaintiff was drowsy and "out of it". Following his discharge from the hospital, the plaintiff took Percocets for two weeks. Despite this medication, the trial judge held that the plaintiff was not so incapacitated that he was unable to arrange for the required notice to be given to the municipality. Thus the plaintiff's claim was held to be statute barred by the trial judge.
The Court of Appeal reversed. The Court of Appeal held that there was ample evidence to support "reasonable excuse".
Mr. Huxley concludes his article with the realistic comment that failture to give notice as required by the Municipal Act, 2001 months after an accident will require a municipality to consider whether to push the notice defence. Questions that municipalities will continue to face will be whether or how a municipality should defend such actions or whether they should just concede and pay.
June 21, 2010
Benefit of the Doubt has to be given to the Victim
It is not often we get comments on our blog. It is even rarer when we get a comment from someone who is outside Ontario, much less Canada. So it was good to read the comment from Ms Sindhu Yadav of Choir de Law Pvt. Ltd, India (and who I presume to be a colleague lawyer), to my February 27, 2010, blog on the Ontario Court of Appeal's decision in Crinson v. Toronto (City), 2010 ONCA 44.
The title I gave to that blog entry was "Ignorance of the Law can be a Reasonable Excuse", which perhaps showed my concern with the Court of Appeal's decision. However, the comment from Ms Sindhu Yadav of India was, "The decision of Court of Appeal is highly welcome. In such cases the maxim "Ignorance of law is no excuse" is defeated. Benefit of doubt has to be given to the victim."
That is an interesting comment. Please keep the comments coming...
The title I gave to that blog entry was "Ignorance of the Law can be a Reasonable Excuse", which perhaps showed my concern with the Court of Appeal's decision. However, the comment from Ms Sindhu Yadav of India was, "The decision of Court of Appeal is highly welcome. In such cases the maxim "Ignorance of law is no excuse" is defeated. Benefit of doubt has to be given to the victim."
That is an interesting comment. Please keep the comments coming...
June 12, 2010
If a City is going to fix a sidewalk, it has to do a good job
The Ontario Court of Appeal says that the City of Burlington was partly liable for a woman's broken leg because the City's sidewalk allowed for the pooling of liquid on the sidewalk which caused her to slip and fall. Cartner v. Burlington (City), 2010 ONCA 407.
The City had tried to fix the cement sidewalk by grinding down a trip ledge. In the process, the City reversed the drainage of water and liquids from the sidewalk. After the grinding of the sidewalk, water and liquids pooled in a corner of the sidewalk.
The Court of Appeal also said the correct test is the "but for" test, namely that "but for" the pooling of water caused by the reversed drainage, caused by the grinding down of the trip ledge, the plaintiff would not have fallen. The City should have replaced the concrete slab instead of grinding it down since this caused a greater or additional problem.
According to the Court of Appeal, the trial judge was correct in concluding that the neligence of the City was a "cause" and that it did not have to be the only "cause" of the plaintiff's injury.
I wonder if the "but for" test, however, was the correct test in this instance? It seems to me it could also be said that the accident would not have occurred "but for" the plaintiff walking along the sidewalk and not stepping over the pooled liquid, yet there is no mention in the judgment about contributory negligence. Doesn't this make the City an insurer for those who have trouble stepping over defects on its sidewalk? Is that expense the City taxpayers should have to bear?
The City had tried to fix the cement sidewalk by grinding down a trip ledge. In the process, the City reversed the drainage of water and liquids from the sidewalk. After the grinding of the sidewalk, water and liquids pooled in a corner of the sidewalk.
The Court of Appeal also said the correct test is the "but for" test, namely that "but for" the pooling of water caused by the reversed drainage, caused by the grinding down of the trip ledge, the plaintiff would not have fallen. The City should have replaced the concrete slab instead of grinding it down since this caused a greater or additional problem.
According to the Court of Appeal, the trial judge was correct in concluding that the neligence of the City was a "cause" and that it did not have to be the only "cause" of the plaintiff's injury.
I wonder if the "but for" test, however, was the correct test in this instance? It seems to me it could also be said that the accident would not have occurred "but for" the plaintiff walking along the sidewalk and not stepping over the pooled liquid, yet there is no mention in the judgment about contributory negligence. Doesn't this make the City an insurer for those who have trouble stepping over defects on its sidewalk? Is that expense the City taxpayers should have to bear?
April 15, 2010
Amendments to MMS
Final comment from Jennifer Stirton on the new Ontario Municipal Maintenance Standards:
7. Inspection for Sidewalk Discontinuity
The MMS now require annual inspections of sidewalks to check for surface discontinuities. There was no previous annual inspection requirement. In addition, municipalities are now required to treat sidewalk surface discontinuities that exceed two centimetres within 14 days after becoming aware of the fact. The constructive knowledge provision discussed above will also apply. Treating a surface discontinuity on a sidewalk involves taking reasonable measures to protect users of the sidewalk from it, including permanent or temporary repairs, alerting users’ attention to it or preventing access to the area of discontinuity.
7. Inspection for Sidewalk Discontinuity
The MMS now require annual inspections of sidewalks to check for surface discontinuities. There was no previous annual inspection requirement. In addition, municipalities are now required to treat sidewalk surface discontinuities that exceed two centimetres within 14 days after becoming aware of the fact. The constructive knowledge provision discussed above will also apply. Treating a surface discontinuity on a sidewalk involves taking reasonable measures to protect users of the sidewalk from it, including permanent or temporary repairs, alerting users’ attention to it or preventing access to the area of discontinuity.
April 1, 2010
Amendments to MMS
More commentary on the recent amendments to the MMS, by Jennifer Stirton.
2. Application of MMS Not Restricted to Motor Vehicles
The MMS previously provided that they applied only in respect of motor vehicles using highways. This provision has been repealed, which suggests that the MMS now apply to pedestrians and bicycles using highways. This may be a response to recent case law which held that where roads are kept in a reasonable state of repair for vehicular traffic, which can include MMS compliance, a municipality may not be liable to pedestrians injured while walking on the road surface. Holmes v. Kingston (City), [2009] O.J. No. 1838 (S.C.J.).
2. Application of MMS Not Restricted to Motor Vehicles
The MMS previously provided that they applied only in respect of motor vehicles using highways. This provision has been repealed, which suggests that the MMS now apply to pedestrians and bicycles using highways. This may be a response to recent case law which held that where roads are kept in a reasonable state of repair for vehicular traffic, which can include MMS compliance, a municipality may not be liable to pedestrians injured while walking on the road surface. Holmes v. Kingston (City), [2009] O.J. No. 1838 (S.C.J.).
March 23, 2010
Graham v. Toronto, [2009] O.J. No. 4633
This is a decision of A. Sosna J. of the Ontario Superior Court of Justice.
I think this is an interesting decision because the judge dismissed the claim against the City of Toronto even though the plaintiff had tripped and fallen over a "metal frame" left lying in the middle of the sidewalk. The claim was dismissed because the City had good record keeping which showed that it had inspected the highway (including the sidewalk) just 8 hours before the trip and fall. Therefore the City had met the standard of care required of it.
Facts: A claimant tripped and fell after stepping into the interior of a metal frame lying on the sidewalk. Apparently he saw the metal frame, stepped into it and while exiting, caught his left foot on the frame. As a result, he lost his balance and fell, suffering two broken bones in his left arm. A metal rod had to be inserted into his arm.
The Municipal Act, 2001, s. 44, governs liability. It provides that a municipality is liable for all damages sustained for failing to keep highways (which includes sidewalks) in a state of repair that is reasonable in the circumstances. It also includes a defence that a municipality is not liable if it did not know and could not reasonably have been expected to have known about the state or repair of the highway.
The City provided evidence that an inspection of the highway, including the sidewalk, had taken place approximately eight hours before the trip and fall. The City employee who conducted the inspection says that he would have immediately removed the metal frame had it been noticed. Further, there was no record of any complaint or notice given to the City about the metal frame on the sidewalk.
The trial judge held that it is a question of fact in each case whether a condition of non‑repair or hazard exists and if so, whether the municipal authorities’ response is reasonable, timely and properly executed. The judge held that the inspector had not observed the rectangular metal frame lying on the sidewalk and the accuracy and reliability of his observations were not undermined or negated during cross-examination. Therefore, despite the “tragic and unfortunate injuries to the plaintiff”, the defendant met its evidentiary burden of establishing that it had met the requirements of the Municipal Act, 2001, and as such should not be held to a standard of perfection.
The trial judge then dismissed the plaintiff’s claim.
The trial judge went on to assess damages at $50,000.00 and interestingly would have assessed contributory negligence at 50%.
I think this is an interesting decision because the judge dismissed the claim against the City of Toronto even though the plaintiff had tripped and fallen over a "metal frame" left lying in the middle of the sidewalk. The claim was dismissed because the City had good record keeping which showed that it had inspected the highway (including the sidewalk) just 8 hours before the trip and fall. Therefore the City had met the standard of care required of it.
Facts: A claimant tripped and fell after stepping into the interior of a metal frame lying on the sidewalk. Apparently he saw the metal frame, stepped into it and while exiting, caught his left foot on the frame. As a result, he lost his balance and fell, suffering two broken bones in his left arm. A metal rod had to be inserted into his arm.
The Municipal Act, 2001, s. 44, governs liability. It provides that a municipality is liable for all damages sustained for failing to keep highways (which includes sidewalks) in a state of repair that is reasonable in the circumstances. It also includes a defence that a municipality is not liable if it did not know and could not reasonably have been expected to have known about the state or repair of the highway.
The City provided evidence that an inspection of the highway, including the sidewalk, had taken place approximately eight hours before the trip and fall. The City employee who conducted the inspection says that he would have immediately removed the metal frame had it been noticed. Further, there was no record of any complaint or notice given to the City about the metal frame on the sidewalk.
The trial judge held that it is a question of fact in each case whether a condition of non‑repair or hazard exists and if so, whether the municipal authorities’ response is reasonable, timely and properly executed. The judge held that the inspector had not observed the rectangular metal frame lying on the sidewalk and the accuracy and reliability of his observations were not undermined or negated during cross-examination. Therefore, despite the “tragic and unfortunate injuries to the plaintiff”, the defendant met its evidentiary burden of establishing that it had met the requirements of the Municipal Act, 2001, and as such should not be held to a standard of perfection.
The trial judge then dismissed the plaintiff’s claim.
The trial judge went on to assess damages at $50,000.00 and interestingly would have assessed contributory negligence at 50%.
November 2, 2009
Sidewalk Non-Repair
A recent decision of Justice Matheson of the Ontario Superior Court of Justice in Hamilton found that a depression in a sidewalk of 5/8 of an inch does not constitute a state of non-repair, Anderson v. Hamilton, [2009] O.J. No. 4358.
The plaintiff had tripped over a small depression in the sidewalk and fell, breaking her wrist. The court confirmed that each case of non-repair of sidewalks is governed by its own factual basis and the affirmed the traditional formulations that a Municipality is "not an insurer" of anyone walking on its streets and that a Municipality does not have to keep its sidewalk as "smooth as a billiard table".
Further, the court held that the City of Hamilton did have a regular inspection routine for its sidewalks. The City inspects its sidewalks in Hamilton once a year. The court held that this was more inspection than some courts had called for, noting that in some cases inspections every three years have been acceptable. The City of Hamilton therefore was held to have satisfied the duty placed on it by having regular inspections.
The plaintiff had tripped over a small depression in the sidewalk and fell, breaking her wrist. The court confirmed that each case of non-repair of sidewalks is governed by its own factual basis and the affirmed the traditional formulations that a Municipality is "not an insurer" of anyone walking on its streets and that a Municipality does not have to keep its sidewalk as "smooth as a billiard table".
Further, the court held that the City of Hamilton did have a regular inspection routine for its sidewalks. The City inspects its sidewalks in Hamilton once a year. The court held that this was more inspection than some courts had called for, noting that in some cases inspections every three years have been acceptable. The City of Hamilton therefore was held to have satisfied the duty placed on it by having regular inspections.
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