Winter is, too often, a time of ice and snow. Sidewalks and roads, as well as private driveways, may become slippery. Despite one’s best efforts to navigate carefully, slip and falls on icy surfaces do occur. If you are injured in a fall, it is important that you act quickly. Failing to take timely and appropriate steps may jeopardize your right to be fairly compensated for your injuries. This netletter deals with falls on municipal sidewalks and roads. It will be of interest to all pedestrians as well as municipalities. If you fall on private property, the appropriate steps may be very different. Please contact us so that we can best address your specific situation.
If a person is injured due to the presence of ice and snow on a municipal sidewalk or road, he or she may seek to recover from the municipality which is responsible for that sidewalk or road’s upkeep and repair. This is a statutory obligation in Ontario and is found in subsections 284(1) & (1.1) of the Municipal Act, R.S.O. 1990, c.M.45:
The council of the corporation that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in light of all the circumstances, including the character and location of the highway or bridge.
In case of default, the corporation, subject to the Negligence Act, is liable for all damages any person sustains because of the default.
Other factors will also be considered. For example, a person should wear proper footwear and he or she should keep a reasonable watch for patches of ice. If not, that person may be found to be contributorily negligent for their own slip and fall. If in doubt, contact a lawyer and review the facts. Don’t dismiss a possible claim just because you think you were partly to blame. You may be wrong.
Timing is critical. Your lawyer must be informed immediately of your injury. The Municipal Act requires that notice in writing of the claim and of the injury be served upon or sent by registered mail to the head or the clerk of the corporation within 10 days if the municipality is a county or township and within 7 days if an urban municipality. Time may pass quickly. You must contact your lawyer as soon as possible after your fall. If not, your opportunity to be compensated for your injuries may be lost.
Beyond this short notice period, lies a three-month limitation period. Your action or claim must be commenced within three months from the date of your fall. If not, your opportunity to be compensated may once again be lost. The time frame is short. You must act quickly.
Your employees’ response to notice of a slip and fall is also critical. Although municipal employees may not have a duty to inform a person of the need to give notice, they must not encourage that person to let the notice period pass. We strongly suggest that a municipality have in place a regularly updated and reviewed employee practice manual. The municipality should be able to demonstrate that its employees have been trained to reply appropriately to a potential Plaintiff, particularly an unrepresented Plaintiff, attempting to give notice on his or her own behalf. We also strongly suggest that employees be trained to take appropriate notes of such contacts, that comprehensive memoranda be completed in a timely fashion and that the municipality’s insurance company and their legal counsel be notified immediately.
The Standard of Care for Liability
The Municipal Act also states that a municipal corporation is not liable for a personal injury caused by snow or ice on a sidewalk except in a case of gross negligence. Gross negligence is often translated to mean very great negligence. A number of factors are involved when deciding if a municipal corporation has shown very great negligence. Although economic resources, budget limitations and the specific characteristics of the accident site may be considered, municipalities are required to respond promptly to forecasts of impending snow, ice and sleet and must maintain an adequate and reasonable system of inspection as well as snow/ice removal. We live in an age of detailed, up-to-the- minute weather reports and timely notice of turns in the weather may easily be received by most municipalities. Your municipality’s records and maintenance reports will be carefully studied as will regional weather reports.
The bottom line is that notice will be given and a subsequent claim for damages arising from a slip and fall will likely follow well before a detailed analysis of negligence is completed. The limitation periods will drive litigation forward until there is time, usually at Discoveries, for a careful consideration of the merits of the claim. If a person has fallen on your municipality’s sidewalks or roads and you receive notice of injury, you must respond in a considered, professional manner, one which has been carefully planned and routinely followed in all cases.
Timing is key for both parties. Both must act quickly and correctly. For the injured pedestrian, the first obvious priority is medical attention. However, you must also obtain legal advice quickly if you wish to preserve your rights. For the municipality, your response to notice is equally critical. Establish a carefully considered procedure and make sure your employees know it and know they must follow it in every case.
Please note that the information in this netletter has, of necessity, been of a general nature. We are pleased to answer any specific questions or concerns you may have. Please contact Barker Willson so that you can respond quickly and appropriately to whatever Nature has in store for us this Winter.