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.
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.
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 follo