The Ontario Superior Court of Justice recently released its decision in Cartner v. Burlington (City) (August, 2008), an interesting case about a slip and fall on a sidewalk that took place in the unusual absence of ice. The case contains an instructive review of the law with respect to municipal sidewalks and their design and inspection, along with what we believe is significant commentary about municipal sidewalk inspection programs and record keeping of municipalities in that regard.

BACKGROUND

The plaintiff, Marjory Cartner, was 52 years old (58 at the time of trial) when she was injured in a slip and fall incident which occurred on November 8, 2002 in Burlington, Ontario. She was walking from the bus stop to work that day, and the weather was getting colder though it had not yet reached freezing temperatures. There had been no rain for at least two days.

The plaintiff slipped and fell on the sidewalk in front of a store owned by the codefendants Wang and Huang. She suffered a severe fracture of her right femur. The plaintiff’s leg twisted and slid out from under her as she slipped on a muddy concrete slurry substance that had pooled on a part of the sidewalk that sloped toward the adjacent building. She claimed that the injuries she sustained prevented her from returning to her job or from obtaining any other work.

The City of Burlington admitted that the accident occurred on its sidewalk, but claimed that it could only be found liable for damages to the plaintiff if it failed to meet its obligations under the Municipal Act by permitting a condition of non-repair to exist that caused the plaintiff to slip and fall on its sidewalk that day. Even if there was a condition of non-repair that caused the accident, the City argued that it could not be liable because it took reasonable steps to maintain the sidewalk and could not reasonably have known about the presence of concrete slurry on its sidewalk that morning.

EVIDENCE AND FINDINGS AT TRIAL

The court considered the following signifcant issues:

1. Causation – The City argued the plaintiff had to show that the existence of a condition of non-repair caused the injury. In other words, if the plaintiff could not prove that “but for” the negligent act or omission of the City, the injury would not have occurred, then there could be no liability. Because the plaintiff introduced no evidence at trial that showed that if the City’s sidewalk had not been sloped, the accident would not have occurred, the City argued it could not be liable.

The court found, however, that proof that the state of non-repair that existed was “a cause” of the accident did not need to be established with the level of scientific precision and exactitude proposed by the City. The plaintiff did not need to prove that the state of non-repair of the sidewalk was the cause–she needed only to show that it was a cause. Furthermore, an inference of causation may be drawn from the evidence without positive scientific proof.

2. Liability of Storeowners – The storeowners acknowledged they had done work repairing the concrete stoop in front of their store in October 2002, 19 days before the accident. Photographs showed the concrete forms still in place and a great deal of concrete residue flowing from the front stoop of the City’s sidewalk. There was additional evidence that one of the storeowners had hosed the concrete residue off his property and toward the sidewalk, using a garden hose, on the day before the accident. This resulted in a muddy concrete slurry, and once it reached the sidewalk it accumulated and pooled in the low spots on the sidewalk. As such, the storeowners were found liable for the accident.

3.Liability of the City – The court accepted that the City could not be liable on the basis of knowledge of the pooled concrete slurry on the sidewalk. This was because the plaintiffs admitted in argument that the City could not reasonably have known of the pooled concrete slurry that had accumulated on its sidewalk in the few hours that passed between the time the storeowner hosed the slurry off his property and onto the sidewalk, and the time the next morning when the plaintiff fell.

Accordingly, the City’s only liability would need to be based on whether the sidewalk itself was in a state of disrepair. The court accepted that the City was not an insurer of pedestrians that use its sidewalks, and was not required to maintain its sidewalks in a perfectly level condition free from all imperfections. However, in determining whether a section of sidewalk or roadway is in a state of non-repair, it was equally reasonable to expect that the municipality would adhere to its own inspection, maintenance and repair procedures, and take reasonable steps to ensure that the sidewalks and roadways are in compliance with those policies, regardless of whether those policies might otherwise be considered adequate on their own merits.

A. The State Of The Sidewalk:

Witnesses could not say whether this section of sidewalk that sloped away from the roadway had been constructed that way or whether it had heaved or settled to that angle of slope. However, they confirmed that a newly constructed section of sidewalk should follow the Ontario sidewalk construction model guideline. The City could provide no evidence that the sidewalk in this location was constructed in accordance with the applicable Ontario construction standard, or any evidence regarding its construction at all, including who completed the construction. The City also could not say why the sidewalk sloped away from the roadway contrary to the construction standard, and against the slope of the rest of the sidewalk, or why the state of that sidewalk as a whole at the time of the accident was in non-compliance with its own standards for trip ledges and repair. The court accordingly found that the sidewalk in question was improperly constructed and in a state of non-repair as a result of that improper construction.

B. Inspection Program

As for the City’s inspection program, the evidence showed that the City inspected one third of its sidewalks each summer, thus theoretically ensuring that the entire sidewalk network was inspected every three years. The inspectors’ training consisted of little more than an hour and a half of driving around with another City employee, as he pointed out to her a couple of examples - - examples of trip ledges and sidewalk deficiencies - - so she “would know what to look for”. Moreover, while the City maintained a two page policy on sidewalk repair, the summer inspector had never even read the entire policy. The inspector acknowledged that she never saw a City policy with respect to sidewalk slope maintenance, and that it was clear to her that the principal overriding concern of her inspection walks was the discovery of trip ledges. There was also no record that established with certainty that the inspector ever inspected the subject area of sidewalk. The court accepted the position of the plaintiffs that the sidewalk inspection policy was nothing more than a trip ledge repair policy. The court found that no inspection system was undertaken by the City with respect to the slope, grade or drainage of the sidewalks and that the policy, which did not make any mention of the slope or grade or drainage, was inadequate to absolve the City.

CONCLUSION

In the end, the court apportioned 20% liability to the City and 80% to the storeowners.