Lawyers Financial
Civil Litigation, Municipal

Burden of proof in slip and falls on municipal property

With the ice-and-snow season approaching, Toronto litigator Stefan Rosenbaum says municipalities are bracing for the inevitable round of slip-and-fall claims.

Rosenbaum, an associate with Shibley Righton LLP, is usually working on a dozen such cases on behalf of the City of Toronto — incidents where people have hurt themselves slipping on ice on a city sidewalk or street and subsequently sued the municipality for damages.

What many people — even many lawyers — may not know is that in such cases the plaintiff doesn’t simply have to prove the city was negligent, the standard is in fact “gross negligence,” Rosenbaum tells AdvocateDaily.com.

“In order to be successful in a slip-and-fall case against the city you need to be able to prove that it was grossly negligent, and that’s a difficult burden to overcome,” he says.

In fact, in his two years of defending the city against slip-and-fall claims, Rosenbaum has never had to take a case to trial.

Another condition that many are unaware of is that there’s a 10-day limit for a plaintiff to notify the municipality of their injury.

“That’s one of the other defences the city has,” says Rosenbaum. “You have to put the city on notice that you fell and give the location and all the relevant information so that they can investigate it.”

The City of Toronto is the most sued entity in Canada, Rosenbaum says. It doesn’t approach claims the same way a general or property insurer would.

“While an insurer might make an economic decision — is it worth taking this to trial even though we have a strong case — the city takes a different tactic as it is taxpayers who are funding any settlement.”

When the city receives a letter reporting a slip-and-fall injury, it immediately sends out a claims adjuster to investigate and assess whether there’s liability exposure. If so, a settlement might be offered, but if not, the parties set out on the road to litigation.

It takes about four years to bring a claim to trial, Rosenbaum says, as the court system is backed up and these cases require a great deal of documentation.

At trial, a judge presides, not a jury, he adds.

“It’s taxpayers who pay the settlement, so it would be tough to find impartial jurors. Whether it ‘s good or bad, you don’t want the people who are paying the settlement through their tax dollars to be the ones deciding,” Rosenbaum says.

More often, claims are dealt with through mediation, which takes two to three years.

A 2014 report by the City of Toronto transportation department said the city receives an average of 390 slip-and-fall claims a year, representing about a quarter of all lawsuits against the city. Less than half the claims are denied outright, the report indicates.

In defending the remaining claims, the key is good record-keeping by city staff, Rosenbaum says.

“At the end of the day a slip-and-fall case hinges on documentation because the person who plowed the sidewalk isn’t going to remember that specific stretch of sidewalk on that particular day,” he says. 

“So the plaintiff will have their first-hand evidence of what the sidewalk was like when they were walking on it, but the city’s not going to have someone there who can say, ‘no, I remember plowing that street and it was clear.’ It needs to rely on its records, and it looks to see whether or not plows were sent out at the appropriate time.”

It's important the city receives all medical documentation from the plaintiff in a timely manner, which is sometimes a challenge, he says.

According to a public statement from the City of Toronto, as soon as snow begins salt trucks are sent to expressways and main roads. When those are done, the trucks move to local roads. The city aims to clear snow from local roads between 14 and 16 hours after it stops falling.

As for sidewalks, the city will clear snow from roads with high pedestrian traffic and on bus routes after two centimetres has fallen and from the rest when eight centimetres have fallen, provided the sidewalk is wide enough for the equipment. In addition, property owners are required to shovel their sidewalks within 12 hours after a storm.

“The city can’t really download the responsibility for its sidewalks absolutely onto the property owner,” Rosenbaum says. “There are often claims between property owners and their insurer and the city over who’s responsible.”

The bottom line is: “Just because you hurt yourself on city property doesn’t mean the city is responsible for it. If the city paid out every claim for every person that fell on its sidewalks, people would likely be complaining much more about their property taxes.” 

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