If you or a family member is the victim of a fall on snow, ice, or slippery winter conditions, the following Toronto Injury Law Blog Post is a “must read“.
If you’re just a legal keener interested in somewhat educational legal read, this Blog Post is “pretty cool”; as the kids would say.
It’s not just little old ladies who slip, fall and hurt themselves during the winter months. It happens to everyone, of all ages, shapes and sizes. Physically fit, or not so trim. It doesn’t matter. Snow and ice doesn’t discriminate.
First thing you should know, and which you or a loved one should do after a winter slip and fall is take a picture of the area where you slipped and fell. Chances are that if you don’t the area will have changed significantly. Guilty property owners are notorious for clearing up patches of ice after the fact.
That photo which you taken, even if it’s on a bad smart phone is going to be the best evidence which a judge and jury will be able to rely on.
If you don’t take a picture, it will be your word against the word of the Defendant property owner, along with any potential witnesses. I can already tell you what the Defendant property owner is going to say at trial:
“It’s NOT my fault”
“I cleared my ice”
“The guy wasn’t paying attention before he fell”
You will likely say the opposite. Then it will be up for a judge/jury to decide.
It’s important to distinguish between falling on private property vs. falling on public property. Falling on private property means that the laws of the Negligence Act and the Occupier’s Liability Act will apply. Both acts are rather short, and a good starter read for anyone wanting to get familiar with how basic personal injury law works in the Province of Ontario.
When falling on private property, the standard of care is one of regular negligence. It will be up to a Court to decide whether or not the property owner was negligent, and whether or not they kept the property in a proper state of repair. A Judge will look to the winter maintenance records, when the last time the property was maintained, the weather patterns the date or the dates before the accident, any warning signs, was the property properly lit etc. That’s where all of the evidence comes in from the scene of the fall.
The weather the date of the accident, along with the dates leading up to the accident are significant. Property owners will NOT be held to a standard of perfection for their property. This means that a Court will NOT make a finding of negligence against the Defendant property owner if they didn’t clear each and every single snow flake that hit the ground. That’s just insane. Courts take in to consideration that we live in a cold weather climate, and that comes with its own unique set of challenges and demands on property owners. But, at the same time, if you as a property owner haven’t cleared the ice in say 2-4 weeks and your walkway is now a skating rink; that’s a different story.
If the fall happens on public or Municipal property, you’re dealing with a whole different set of laws entirely. You will have to turn to the Municipal Act, 2001. Section 44 has the provisions regarding Liability and Negligence against a Municipality.
The important thing to keep in mind when suing a Municipality is:
1) There is a 10 day written notice requirement to provide to the Municipality by REGISTERED MAIL following the slip and fall. Failure to meet this 10 day notice will NOT automatically bar your case, but that notice provision is in the Act for a reason and it’s best not to mess around with it. Once that 10 day notice period is protected, you then have 2 years to sue from the date of the slip and fall (not from the date of the Notice Letter).
2) The standard of Negligence against a Municipality is one of GROSS NEGLIGENCE. That’s much higher than plain simple negligence; as we find when suing a property owner.
Gross Negligence has been held to mean different things. It all really depends on the facts of the case, and whether or not the Judge deems the negligence to meet the gross negligence standard.
In the case of Cerrilli v. Ottawa, the Judge found that at a pot hole that was 2 inches deep which the City knew required repairs and that the City left unreparied over the winter months to save costs so that they could fix it in the summer was NOT gross negligence. But, the Judge found that the City was grossly negligent for their other winter maintenance in that they knew or ought to have known of the rapid freeze/thaw patterns for the City of Ottawa presented dangerous hazards to pedestrians.
In the case of Winter v. City of London, a Judge threw out a man’s case who fractured his ankle while in-line skating on a City sidewalk because the accident happened in the winter, and the City had applied salt/ice to the area in question 9 days before the accident.
Different cities have different winter maintenance standards and different protocols. What constitutes gross negligence against a municipality all depends of the facts and circumstances of your case, along with which Municipality you’re up against. All Municipal Liability cases are Judge ONLY trials. There cannot be a jury for a Municipal liability claim. It’s the law.
All of the cases I’ve cited, and ll of them which would will find mostly involve Plaintiffs who were wearing proper footwear for the weather conditions. If you’re wearing sandals or running shoes and fall on ice, don’t expect much sympathy from a Judge. They will likely reduce your award by anywhere from 20%-80% or completely shut you out from any sort of recovery. It all depends on the Judge hearing your case. Needless to say, purchasing a good pair of winter boots is a great investment for your safety and accident prevention.
Insurers will hire engineers to examine the tread of your boot to see if it was proper for the weather conditions in your case. Wearing a boot with a worn out tread, or with a poor tread isn’t a good idea.
I think I’ve blabbed on long enough for a winter slip and fall blog post. Anyone catch Toronto’s double OT loss to the Rockets last night? I didn’t. But apparently, Toronto shot under 25% from the field, and only recorded 3 assists in a double OT game. I recorded 3 assists in single half in my recreational, non-contact floor hockey league. Halves last only around 20 minutes. I hope that Toronto makes some moves to really tank the season away. Right now they have far too much talent and should be winning more. But I’m not complaining.