Who’s liable in a slip and fall?
By AdvocateDaily.com Staff
Snow and ice are nothing new in most parts of Canada during the winter, and yet property owners continue to neglect to clear their sidewalks, resulting in slip-and-fall accidents that can lead to serious injuries, says Toronto personal injury lawyer Paul Cahill.
“Most of the time, people’s injuries are pretty minor, with some bruising and maybe a little bit of embarrassment. But on occasion, the injuries can be very serious. People can break their hips, elbows, wrists, and knees, as well as suffer spinal injuries, head injuries and possibly even death,” says Cahill, a partner with Will Davidson LLP.
“Particularly for people whose mobility isn’t great, who are unsteady on their feet or those with walkers, ice and snow on a pathway, road or sidewalk can be very treacherous and potentially dangerous to someone’s life.”
A successful slip-and-fall case, he tells AdvocateDaily.com, comes down to two things: foreseeable risk and reasonable behaviour.
“If you’re a property owner — you are responsible for maintaining a property — you have to act reasonably. As much as we would hope that pedestrian walkways are completely clear and safe, the reality is that in a Canadian winter, that’s just not possible.
"There are going to be times when snow’s falling, there’s going to be accumulation. Or if there’s a sudden change in temperature, ice forms,” Cahill says.
“So, when examining the kinds of features that might suggest there’s negligence, it really comes down to this: an area of pedestrian traffic that’s known to be busy and left in a state of disrepair or unmaintained for winter use for an unreasonable length of time.”
Determining what is unreasonable “depends on the nature and circumstance of the area,” he explains. If the area is busy, and the owner has a good opportunity to clear the snow but decides to wait an inordinate amount of time and a pedestrian is injured in a fall, “there obviously could be a real concern about liability,” he adds.
Specific notice is another factor to consider.
“If someone falls and reports it to somebody in charge of winter maintenance but they don’t do anything and another person falls, that could be a situation where someone responsible had specific knowledge of a hazard or concern and failed to act appropriately in the circumstances,” Cahill says.
Slip-and-fall cases become “more complicated and more challenging” in liability claims made against a municipality for failing to maintain a sidewalk, he says.
“Municipalities already have an advantage because the Municipal Act says that they’re only responsible for slips and falls on a municipal sidewalk where they’ve been grossly negligent,” he notes, meaning a plaintiff has to prove a higher standard of negligence in cases against a municipality.
“The reason for that is in Toronto alone, there are tens of thousands of kilometres of sidewalks and it’s going to take some time to get out there and maintain them. They have priority lists that they follow, depending on how busy particular sidewalks are.
"Obviously, if they fail to follow their own procedure or there’s some other kind of unreasonable delay, they can still be found responsible, but it’s certainly much more difficult,” Cahill says.
Plenty of court decisions have dealt with gross negligence, but every case is going to be different, based on the facts, he says.
“How much snow was there? How much ice was there? What was the temperature like? What about the plaintiff? How did they fall? What kind of boots were they wearing? So, every case is very fact-specific in terms of whether there was gross negligence by a municipality.”
Despite conventional wisdom, homeowners are not responsible for clearing the municipal sidewalks in front of their properties — though they could be cited for a bylaw infraction if the snow and ice aren’t removed in a set number of hours, depending on the municipality, Cahill says.
“If someone slips and falls on a municipal sidewalk in front of your house and you didn’t clear it of snow, you are not legally responsible. There would not be a case against the homeowner.”
The owner can, however, be sued for a slip and fall on private property, Cahill says.
“You can certainly be sued for negligence. Most people have insurance and that’s exactly the kind of claim that a homeowner’s policy would respond to.”
Property owners aren’t the only ones who could be held liable in slip-and-fall cases. Plaintiffs can be found to be contributorily negligent, “which means that the plaintiff was doing something that a normal, reasonable, ordinary, prudent person wouldn’t do in the circumstances,” he says.
“To take an extreme example, if you were wearing flip-flops in the winter and you ended up falling and hurting yourself, the defendant could say that if you had worn winter boots, you wouldn’t have slipped and fallen. Therefore, it’s really your fault this happened.
“The more typical argument is the defendant says, ‘Why did you even walk there? You saw that it was icy, you saw that it was slippery. Why didn’t you take a different route?’” Cahill says.
“I think courts have issued mixed decisions about what is contributory negligence and to what degree. There are a few arguments that can be made. But most have to do with not paying reasonable attention to your surroundings and therefore contributing to the outcome — maybe not 100 per cent but to some degree,” he says.
“And to whatever degree you’re found to have contributed to the outcome, that percentage will be discounted from whatever damage award you’re entitled to.”