The Ontario Superior Court of Justice recently awarded damages of over $200,000 against a municipality for a trip and fall accident on a sidewalk and applied 50% reduction for the plaintiff’s own contributory negligence. On November 25, 2009, the plaintiff, a 29 year old hairdresser, was walking from the salon where she worked to the drug store when she stubbed her toe on a difference in elevation between two sidewalk slabs. She took about five steps forward and fell onto her right arm, sustaining a right upper arm fracture and a full thickness tear of the rotator cuff. She commenced an action against the County of Haldimand (the “County”).
The Court first considered whether a condition of non-repair existed, noting that pedestrians should not expect a perfectly flat sidewalk surface. Not every difference in elevation between two sidewalk slabs would necessarily be a condition of non-repair. However, the Court identified some bench marks as to when differences in elevation become conditions of non-repair for which a municipality could be liable. The Court cited cases referring to the “judicial rule of thumb” that a variance of three- quarters of an inch could constitute non-repair. Once a plaintiff establishes a condition of non- repair, then a municipality may escape liability by demonstrating that it exercised proper care and diligence in the inspection and maintenance of the sidewalk. The Court cautioned that areas of high pedestrian traffic, like the location of the plaintiff’s fall, require greater vigilance on the part of municipalities than less busy areas.
In this case, the Court found that the difference in elevation which caused the plaintiff’s fall was in all likelihood between three-quarters of an inch to one and one-quarter inches. This was more than a minor trip ledge, and it constituted a state of disrepair. The Court then considered what steps the County took to inspect and maintain the sidewalk. The County had an annual sidewalk inspection performed by County staff or college students whereby they identified differences in elevation and placed anything exceeding one- half inch on a repair list, with the most serious ones exceeding one inch to be repaired “as soon as practical.” The Court was not critical of the County’s policy. That said, the Court concluded that, in its 2009 inspection, the County either failed to recognize the hazard or, recognizing it, failed to act with reasonable dispatch in repairing it.
The Court found that the plaintiff was also responsible for her accident. She did not pay enough attention to where she was walking, and the difference in elevation was there to be seen. Accordingly, the plaintiff and the County were each 50% liable for the accident. The total damages award was $215,530 before applying the 50% reduction. The plaintiff’s general damages were assessed at $50,000 on a 100% basis. The rotator cuff tear caused significant discomfort and disability, limiting her ability to contribute to homemaking, housekeeping and outdoor maintenance tasks. The Court also awarded $144,530 for future care costs which included $16,697.24 for physiotherapy until the age of 60, $75,735 for housekeeping until the age of 70, and $50,114.18 for gardening, window cleaning and curtain washing until the age of 70. The plaintiff was also awarded $9,000 for past income loss and $12,000 for loss of future income.