It’s that time of year again!
The winter season is upon us and that means snow, ice, slippery conditions – and falls! If you are the victim of a fall, and more than just your pride is injured, you would be wise to promptly seek legal advice. Timing is particularly critical if the fall occurs on a municipal sidewalk or roadway since the Municipal Act requires that the municipality be notified of any claim within 7 days (10 days if rural municipality).
However, just because a person falls as a result of icy conditions, does not automatically mean that there will be legal liability. As we explained in Negligence, Cause & Effect (Fall 2001), to be entitled to damages a claimant must establish three things.
1. The wrongdoer owed him/her a duty of care.
2. In carrying out that duty, the wrongdoer failed to exercise such care and skills as might be expected in the circumstances.
3. The breach by the wrongdoer was in fact the cause of the damages.
If any one of these elements is missing, the claim will fail, regardless of the extent of the damages suffered.
With respect to slip and fall cases, it is condition number two that is generally the most troublesome one for complainants to establish. Perhaps the best way to illustrate these principles is by way of an actual case.
Fleury v. Saint-Hyacinthe (Ville)
[2001] J.Q. No. 4657
Fleury slipped on an icy part of the sidewalk as she was attempting to cross the street. She blamed her fall on the snow and ice that had accumulated on the sidewalk following several days of inclement weather. As a result of the fall, Fleury injured her leg and ankle.
On the day before Fleury’s fall, the city had spread salt and sand on two occasions over a six hour period. The day of the accident had been sunny, however there had been a light snowfall during the early evening. On that particular day, the city had spread salt and sand during the afternoon and the early evening.
Fleury’s action was dismissed and the city was found not to be at fault. The court concluded that the city had acted in a reasonably prudent manner with respect to spreading sand and salt, given the weather conditions. Although it was likely that the area had been slippery due to the snow that had fallen earlier in the evening, the court stated that the city could not be expected to spend 24 hours a day working on the sidewalks, nor could it be expected to remove every trace of snow and ice. The court went on to say that Fleury was herself, under an obligation to take extra care in walking on a sidewalk she knew to be icy.
In this type of case, the courts will be concerned with the steps that the municipality, the store, the school, the recreational facility or the homeowner has taken to minimize the icy conditions. For instance,
– did they have a regular maintenance schedule,
– did they adhere to that schedule,
– did they adjust the schedule for the weather conditions.
The courts will also consider what the weather and lighting were like on the day in question. In addition, the courts will be interested in the conduct of the claimant. For instance,
– was the claimant familiar with the area where he/she fell,
– was he/she exercising proper care given the conditions and
– was he/she wearing proper footwear.
So tread carefully, tread safely and if disaster should strike, be sure to seek prompt legal advice.
If you or someone you know require information or assistance with a personal injury matter, please contact Nicola Savin.
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