Slip and fall accidents on municipal sidewalks are a source of significant litigation for municipal defendants.
In the recent decision of Cromarty v Waterloo (City),[1] Justice Broad provided guidance on:
- the type of evidence that a plaintiff should put forward to establish that a sidewalk was in a state of non-repair;
- the kind of evidence that defendants may use to refute that claim;
- and when a plaintiff will be found contributorily negligent for their fall.
Background
This was a trial under the Simplified Procedure. Damages were agreed upon, and the trial proceeded on the issue of liability only.
The Plaintiff fell on the municipal sidewalk on July 30, 2014. About two weeks after the fall, she re-attended the location of her fall with her son-in-law, who took photographs of the area. He measured the height discrepancy between the two sidewalk slabs where the Plaintiff fell, using a piece of cardboard laid across the higher sidewalk slab, and a ruler placed perpendicular to the edge of the cardboard to measure the height difference between the slabs. These measurements ranged from eight-tenths of an inch to slightly more than one inch.
The City tendered evidence regarding their system of inspection and maintenance of municipal sidewalks. Any surface discontinuity above the Minimum Maintenance Standard’s two-centimetre guideline was considered a hazard by the City. The City conducted sidewalk inspections of the area of the accident on May 7, 2013, and July 10, 2014, but no deficiencies were noted. There was also no record of any accidents, complaints, or notification of any defects received from any member of the public for this area in 2013 or 2014.
The City also tendered evidence from an experienced claims investigator, Mr. Black, as well as an investigative engineer, Mr. Johnson, who both measured the discontinuity in question using a combination square (also called a carpenter’s square), which is a fixed measuring device with a movable flat part that extends out from a ruler at a 90-degree angle.
At the highest point of the discontinuity, Mr. Black’s measurement was 18 millimetres, and Mr. Johnson’s measurement was 17.5 millimetres. Accounting for margin of error, Mr. Johnson testified that the height differential would have been no more than 18.5 millimetres. On consent of the parties, Mr. Johnson was qualified as an expert witness concerning measurements of sidewalk slab discontinuities.
The Decision
Justice Broad ultimately concluded that the area of sidewalk in question was in a reasonable state of repair given its character and location under section 44(1) of the Municipal Act.
Justice Broad found that the sidewalk at the site of the fall had moderate pedestrian traffic, the discontinuity in question was not identified as a defect in the City’s 2013 or 2014 sidewalk inspections, and there was no evidence of any incidents or complaints concerning the condition of the sidewalk leading up to the fall.[2]
Further, the measurements taken by Mr. Black and Mr. Johnson of the sidewalk discontinuity obtained from the use of the combination square were preferred over the “makeshift method” used by the Plaintiff’s son-in-law.
Citing the previous decision in Barbeau v Kitchener (City),[3] Justice Broad held that using a combination square to measure the height differential between two horizontal planes, such as a discontinuity between two sidewalk slabs, was reasonable and appropriate.[4] Notably, Justice Broad also stated that “a ruler used alone is an inferior device to a combination square for the purpose of measuring height differentials between two horizontal planes.”[5]
Mr. Johnson’s methodology of taking measurements with a combination square at 6-inch intervals across the width of the sidewalk was an appropriate and reliable method to measure surface discontinuity.
Justice Broad concluded theanalysis that the sidewalk was in a state of repair as follows:
In Barbeau v. Kitchener (City) I found at para. 70 that the adoption by a municipality of the Provincial Minimum Maintenance Standards has removed the need to rely upon a “judicial rule of thumb” derived from caselaw that predated their adoption.
I also found at para. 73 the maximum height differential of two centimetres (20 mm) provided for the Minimum Maintenance Standards to be reflective of a reasonable standard in the context of the “small residential street” described in that case. I similarly find that a height differential of two centimetres (20 mm) represents a reasonable standard of repair in the context of the sidewalk with moderate pedestrian traffic at issue in this case. As in Barbeau, I offer no comment on whether it would be considered reasonable in other contexts.[6]
Finally, Justice Broad held that if the Plaintiff had established that the City was liable for her injuries, she would have found the Plaintiff to be 20% contributorily negligent. This was because the Plaintiff was very familiar with the area of sidewalk in question, having walked the sidewalk daily for over a decade. The Plaintiff’s own evidence also disclosed that she was looking ahead at the time of her fall instead of observing the sidewalk in front of her.[7]
Conclusion
This decision provides important guidance for municipalities who receive notice of a slip and fall incident as it makes clear that an early and thorough investigation can and does lead to a successful defence.
In particular, qualified claims investigators or engineers should be deployed to take thorough measurements with appropriate equipment. Of course, all such investigations must be properly documented. Combined with the judicial authority of Justice Broad’s decision, such evidence may assist in the early dismissal or resolution of such claims.
[1] 2022 ONSC 1322.
[2] Cromarty v Waterloo (City), 2022 ONSC 1322 at paras 86-88.
[3] 2017 ONSC 24.
[4] Cromarty v Waterloo (City), 2022 ONSC 1322 at para 90.
[5] Cromarty v Waterloo (City), 2022 ONSC 1322 at para 92.
[6] Cromarty v Waterloo (City), 2022 ONSC 1322 at paras 98-99.
[7] Cromarty v Waterloo (City), 2022 ONSC 1322 at para 102.
