Despite Wiarton Willy’s predictions, we are stuck with winter for another couple of months. With that in mind, it’s time to be aware of snow and ice, but not only when driving.
Slip and falls on snow and ice can result in serious injuries. Falls also result from tripping on uneven sidewalks and broken and uneven parking lots. While Sullivan Mahoney’s personal injury department represents many victims of motor vehicle collisions, we also represent people who have been injured in falls.
If you have been involved in a fall incident as a result of someone’s negligence and have suffered an injury as a result, there are a few things you should know.
The Duty of an Occupier
One of the most important pieces of legislation that our personal injury department relies upon in fall incidents is the Occupier’s Liability Act. This Act states that an occupier, or someone who is in physical control of a property, must take steps to see that that property is safe for people who come upon it.
The Supreme Court of Canada has stated that the duty of care stipulated in this legislation is a pro-active one. This simply means that an occupier cannot sit idly by while a hazard is created on their property, they must act to remove that hazard.
For example, when it snows, a property occupier must take reasonable steps to remove that snow and ice so that people who walk on it do not fall and become injured. If a parking lot forms potholes or crumbles, the occupier of that property must repair it. The repairs do not have to be completed to a perfect standard; no one expects there to be no snow whatsoever on a parking lot or a driveway, but the property must be maintained in a reasonable manner. Most businesses maintain sanding, salting and repair logs and these logs become important evidence when determining whether the business acted reasonably; they are often the first thing we ask a defendant to produce in a lawsuit.
Suing a Municipality
Sullivan Mahoney’s personal injury department frequently receives calls from people who have been injured on city property. They trip and fall on an uneven sidewalk, or slip on ice that has not been properly removed or salted. The Municipal Act imposes restrictions on individuals who want to sue a municipality. The following are frequent issues that arise when examining a potential claim against a municipality:
Section 44(10) of the Municipal Act requires written notice be provided to the municipality within 10 days of the incident occurring. That’s not a lot of time, so you have to act quickly. While exceptions to this notice provision have been outlined in certain court cases, it is important that if you have sustained an injury after a fall on municipal property to provide written notice of the fall as soon as possible, including specifics of the location.
Snow and Ice on Sidewalks
For a slip and fall on snow and ice on a sidewalk there is a greater standard to meet if you wish to successfully sue for you injuries.
In such circumstances, Section 44(9) of the Municipal Act requires the injured person to prove “gross” negligence rather than the standard in most cases which is just “negligence”. The Supreme Court of Canada has defined gross negligence as “very great negligence.” While this standard is generally assessed on a case by case basis, some evidence that could assist in proving gross negligence would include forewarning of inclement weather or persistent complaints to the municipality by individuals of dangerous conditions, with little or insufficient action on the part of the municipality to prevent the slip hazard.
Even though this “gross” negligence standard acts to restrict claims against municipalities, these claims are not completely barred and their success will depend on the evidence.
While the City cannot be expected to guarantee perfect sidewalks, multiple court cases have held that a deviation of ¾ of an inch on an otherwise level surface can qualify as an unjustified trip hazard. Again, liability is assessed on a case by case basis taking multiple factors into account.
Claims against a municipality can be complex. The above referenced issues can be further complicated by legislation, related regulations, court cases and case specific factors. Our personal injury department can assist injured parties in wading through these issues to determine whether a lawsuit is worth pursuing, taking all matters into account.
Other types of Occupiers
Fall incidents are frequent occurrences at private properties as well. Parking lots, driveways, and stores are all locations that are captured by the Occupier’s Liability Act. The occupiers of these properties are obligated to make their properties safe and hazard free, as much as is reasonably possible. If you slip on a clear liquid at your local grocery store within seconds of it spilling, for example, it may be unreasonable to expect it to have been cleaned up by the time you arrived at the spill. However, if that liquid had been present on the floor for an hour before you happened upon it, the occupier likely failed in their duty of care.
Contributory negligence applies to a claim when it is determined that the injured person is in some way at fault for the injuries they have sustained. The question we ask when looking at contributory negligence is ‘what did the injured party do that contributed to her injury?’
In slip and falls incidents, particularly on snow and ice, contributory negligence may apply if someone was wearing footwear inappropriate for the weather conditions. Defence counsel will often ask to see the footwear, and, in particular, the treads on the bottom of the shoes. In a trip and fall incident, contributory negligence may apply if the individual was not looking where she was going, was walking backwards, for example, or was running when she shouldn’t have been. Just as an occupier is expected to have acted reasonably, so is the injured party.
Help us to help you
Photographs of the location of the fall are almost always helpful. They are particularly valuable in the case of snow and ice build up. However, the photographs need to be taken as contemporaneously with the fall as possible so that the condition of the area at the time of the fall is shown. If the snow has been removed by the time the photographs are taken, valuable evidence is lost. This is why it is also important to contact our offices quickly in the event of a trip. Fractions of an inch can make the difference in liability. We have trained engineers and investigators at our disposal who can attend at the scene to take measurements before remedial measures are under taken by the defendants to repair the hazards.
Ultimately, we all try to take care when we navigate our surroundings. Despite being careful, when hazards are present due to the negligence of others, people can be injured, sometimes seriously. Our personal injury department is well versed in the often complex laws surrounding such incidents. This winter season, while you get your winter tires, also take heed of the ground below your feet.
Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website. Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.