JANUARY 2013
RIEHL v. HAMILTON (CITY)
MUNICIPALITY’S LIABILITY FOR SIDEWALKS GREATER IN HIGH TRAFFIC AREAS
In a recent judgment of Justice Cavarzan of the Ontario Superior Court of Justice,
the court considered a municipality’s duty under section 44 of the Municipal Act, 2001,
(the “Act ”) relating to sidewalk maintenance. At issue was a claim for damages resulting
from a pedestrian trip and fall accident that was caused by an uneven sidewalk. The decision
is interesting for its discussion of a higher standard expected of a municipality in maintaining
its sidewalks within a high traffic area. Please click here for the full decision.
MUNICIPAL LIABILITY ALERT
THE FACTS
Early on the summer morning of July 19, 2007,
the plaintiff tripped and fell over a height differential
between two sidewalk slabs while hurrying to catch
a bus. The plaintiff sustained a crack in her tibia
shinbone and two loose front teeth. The plaintiff’s
estimate of the height differential where she
tripped was one inch or more.
THE LEGAL ANALYSIS
In determining whether the municipality was
liable for the plaintiff’s injuries, the court considered
whether the sidewalk was in a state of disrepair;
if so, whether the state of disrepair caused the
injuries; and whether the municipality could
rely on any defence to shield it from liability.
The Court considered section 44(1) of the Act,
which provides that a municipality has a duty to
keep its sidewalks in “a state of repair that
is reasonable in all circumstances.”
There was no objective evidence of the height
differential at the location of the fall available to
the Court. Neither the municipality nor the plaintiff
measured the height differential of the uneven
sidewalk following the incident. Reluctant to rely
solely on the plaintiff’s estimate of the height
differential, the Court inferred that the height
differential of the sidewalk crack was at least an
inch or more based on the municipality’s sidewalk
repair procedures.
The municipality’s procedure was to grind a
sidewalk crack with a height differential of 1 inch or
less down to an even level. Anything above 1 inch in
height was repaired with asphalt to make a ramp.
There was evidence that the sidewalk in the area
of the fall had been repaired with asphalt sometime
prior to the plaintiff’s fall, though the repair was
described by the court as “shoddy”. On that basis,
the Court held that the height differential was at
least one inch or more.
The Court noted that the prevailing law was that
sidewalk height differentials greater than 3/4”
constituted non-repair. Furthermore, although a
height differential of one and a half to two inches
was held to constitute a reasonable state of repair
in the case of Stojadinov v Hamilton (City), 1988
CarswellOnt 5061, the court was of the view
that this was specific to a set of facts where the
municipality was unaware, prior to the accident, of
the uneven sidewalk. In this case, the municipality
was deemed to be aware of the uneven sidewalk
given its attempt to fix it sometime prior to the
accident. As such, the Court found that the height
disparity in this case constituted an unreasonable
state of repair in the circumstances.
The Court turned next to the question of contributory
negligence. The Plaintiff was rushing to catch a
bus and did not pay attention to where she was
walking when the accident occurred. This was
compounded by the fact that she was no stranger
to the area having walked over the crack on her
daily commute, and she knew it was there. The
Court attributed 25% contributory negligence to
the Plaintiff as a result.
The Court then considered whether the municipality
could rely on a lack of knowledge of the disrepair
pursuant to Section 44(3) of the Act to shield it from
liability. Given that the municipality had attempted
to fix the sidewalk crack prior to the plaintiff’s
accident, it was not in a position to argue as a
defence that it did not, or could not have known
about the sidewalk’s state of disrepair.
With respect to the municipality’s section 44(3)(b) defence that it took reasonable
steps to prevent the sidewalk from falling into disrepair, the Court held that it did
not. Although the Court considered the municipality’s policy of conducting annual
sidewalk inspections to be reasonable, the Court had its doubts as to whether
such a policy was actually being implemented.
Interestingly, after finding that the municipality had no statutory defence available
to it, the Court noted:
The sidewalk in question is in a high pedestrian traffic area, a fact
acknowledged by the witness Paul McShane. The intensity of pedestrian
traffic is a factor, in my view, in assessing the adequacy of the defendant’s
response in dealing with defects and trip hazards.
While the decision does not go into any detail, this would appear to be a comment
on the section 44(1) duty to keep sidewalks in “a state of repair that is reasonable
in the circumstances,” including its character and location.
Damages were assessed at around $100,000.
CONCLUSIONS
This decision addresses the factors a municipality should consider when
determining how to meet its Municipal Act duties to keep sidewalks safe for
pedestrians. Although the Act provides a municipality with defences to shield it
from liability following the injury of a pedestrian, municipalities must be ready to
show that the maintenance system in place is reasonable and that it is followed.
Furthermore, in areas of high traffic, a higher standard of care is required.
AUTHORS
Robin Squires | Toronto | 416.367.6595 | [email protected]
Marco Deiana | Toronto | Student at Law
MUNICIPAL LIABILITY GROUP
National Leader
Edward A. Ayers Toronto 416.367.6153 [email protected]
Regional Leaders
Bruce Churchill-Smith
Bruce Carr-Harris Kevin A. McGivney Larry R Jackie, Q.C. Calgary Ottawa Toronto Vancouver 403.232.9669 613.787.3505 416.367.6118 604.640.4115 [email protected]
[email protected]
[email protected]
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