Winter is fast approaching and winter conditions have already been felt in many Ontario communities. With the change in weather, there is invariably an added risk of slipping and falling on slippery sidewalks, pathways and parking lots. And, if you do fall and sustain injuries on a public or private walkway, you may be eligible for compensation if your injury was caused by an unsafe condition, such as a failure to take reasonable steps to keep the walking surface free from ice and snow.
Municipalities owe a reasonable duty of care to keep people coming onto their property safe from harm. There are several statutes that define a municipality’s obligations to the public. The Occupiers’ Liability Act requires all property owners and occupiers (which includes anyone who is responsible for the activities carried out on a property) to prevent anyone from being hurt on the property due to an unsafe condition. Specifically, section 3(1) of the Act “provides that an occupier of a of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises are reasonably safe while on the premises.” Ontario’s Municipal Act further defines a municipality’s obligations in maintaining roads, buildings, public lands and other property under their care. Finally, the Negligence Act sets out rules for determining and apportioning liability, particularly with respect to shared liability and contributory liability for an accident. In cases where a person is injured on municipal property or from the actions of a municipal employee, the courts must assess whether the circumstances of the accident constitute a breach in their duty of care and if so, did the actions of the injured person contribute in any way to their injury. These were the issues to be decided in a recent civil action brought against the City of Sudbury.
The 2016 trial, Franklin et. al. v The City of Greater Sudbury, arose after a 60-year-old woman fell on a City parking lot, causing her to suffer a severe fracture of her right ankle. The accident occurred while the plaintiff was walking her dogs at Delki Dozzi Park, a multi-use City park. As she stepped onto a parking lot on the western end of the park, she lost her footing and slipped and fell on ice hidden underneath a layer of snow. The City maintains the entire park during spring, summer and fall; however, the City only maintains limited areas of the park in the winter, where there are features used in winter, such as a rink and community hall, and which are almost entirely on the eastern end of the park (where there is another parking lot). Winter maintenance of this area includes plowing and spreading sand on the east parking lot and adjacent walking paths. Although there is no winter maintenance for the soccer fields, a playground, wooded areas and other features in the rest of the park, there is nothing to prohibit the public from using these areas, including no signs or barricades to prevent entry.
The accident happened in mid December and there was light precipitation not long before. The parking lot is surrounded by hills and it is likely that water drained from higher elevations, froze and then was hidden by a thin layer of snow. The plaintiff is quite active and fit, and was wearing appropriate footwear for winter. She was also allegedly not rushed or distracted when she fell. These factors are relevant considerations for the court in determining whether a plaintiff is contributorily liable for their injuries.
Section 4 of the Occupiers’ Liability Act was referenced in assessing the City’s potential liability: “with respect to risks willingly assumed by the person who enters the premises the occupier owes a lesser duty to not create a danger with the deliberate intent of doing harm or damage to the person and to not act with reckless disregard of the presence of the person. In this case, this lesser duty of care would only apply if Mrs. Franklin is considered to have entered a premises described as “recreational trails reasonably marked by notice as such”. In order to make a determination on this issue, the following questions needed to be addressed by the court.
- Was the location of the accident within the definition of recreational trails reasonably marked as such?
- If ‘yes’ to #1, did the City act with reckless disregard?
- If ‘no’ to #1, did the City take reasonable care under the circumstances of the case, to see that the plaintiff would be reasonably safe while on the premises?
- Was the plaintiff negligent?
With regards to the first question, the trial judge reasoned that the location of the accident does not fall into the Act’s definition of a recreational trial. The judge surmised that, although the park includes a marked recreational trail at its east end, a person, such as the plaintiff, using facilities at its west end should not be subject to a lesser duty of care simply because there are walking trails elsewhere that they may have no intention of using. The second question need not be answered as the lesser duty of care does not apply.
In answer to question three, the judge found that the City did, in fact, not take reasonable care to protect park users from foreseeable harm and injury. It was not obvious, to a reasonable observer, that the western portion of the park was unusable due to winter conditions. As there was little snow, it would also not have been apparent that maintenance had stopped in the western area. As a result, it was foreseeable that people would continue to access that part of the park, including the parking lot, and thus, the City was responsible for maintaining the parking lot through sanding and plowing, or at least, sufficiently warn potential users or prevent its use altogether.
For all of the above reasons, the City of Sudbury was found liable. However, the judge found that the plaintiff also bore some responsibility in her injuries. Specifically, the judge concluded that the plaintiff had reason to suspect the parking lot may be slippery and she should have exercised more caution when walking onto an unmaintained parking lot. It had rained the day before and had then become colder and snowed. Also, the plaintiff testified that the roads on route had been sanded or salted and were somewhat slushy. The judge thus concluded that the plaintiff should have treaded more carefully and accordingly, he found her 40 per cent liable for her injury (and the City liable for the remaining 60 per cent). The City was ordered to pay damages, minus the 40 per cent.
If you were hurt in a slip and fall accident, whether on municipal property, private property or on a business premises, you may be eligible for compensation if property owner negligence contributed to your fall. The respected Sudbury slip and fall accident lawyers can explain your legal rights and options, given the unique circumstances of your fall, and provide strong representation if you decide to file a claim. Call our office today to find out how we can help.