It’s cold in out here
There must be a slip and fall
In the atmosphere
It’s cold out here
There must be some slippy ice
In the atmosphere
Snow and Ice? Bring it on!
Snow and ice isn’t going to stop you from living your life. But, it can sure making getting around much harder, and more treacherous. We’ve seen some serious cold snaps and snow fall throughout Ontario. This has resulted in slipper winter weather conditions for motorists, cyclists and pedestrians.
The focus of this edition of the Toronto Injury Lawyer Blog will be what personal injury lawyers, insurers and Courts look for when assessing the merits and the value of a slip and call case in Ontario.
Just because a Plaintiff slips, falls and hurts themselves does NOT automatically mean that there is winning case. Where you slipped and fell, along with when and how the slip and fall accident took place are just as important as the injuries sustained.
Where you slipped and fell is important because it establishes who the defendant will be. Is the Defendant a private property owner? Is the Defendant a town or municipality? These factors are very important because there are different laws and different standards of negligence which a Plaintiff must establish to sue a private property owner vs. a municipality. There are also different notice provisions for suing a private property owner vs suing a municipality.
Plaintiffs also CANNOT SUE THEMSELVES! This may seem obvious, but it’s worth mentioning given the amount of calls and inquiries we receive from prospective clients regarding slipping and falling on their own property. This is why it’s important to find out there “where” in a slip and fall case. If it turns out that you fell on your own property, you won’t get very far with your claim. While there may be arguments against the negligence of the winter maintenance contractor, it will likely always come back to the ownership of the property save in rare exceptions where the winter maintenance contractor has agreed to hold the owner harmless from any claims for contribution and indemnity. These examples are the exceptions and not the rule.
When did the slip and fall accident happen? Did the accident happen in the midst of the worst snowstorm of the century, or shortly thereafter? Or did the fall happen when the property had been, or ought to have been maintained for snow an ice? If that’s the case, did the winter maintenance contractor properly do his/her job? What we often see are winter maintenance contractors who may have log notes indicating that the area had been sanded/salted, but they didn’t clear the entire area or didn’t do a good job in applying the sand or salt. We have also seen winter maintenance contractors take no log notes, or prepare log notes after the fact to attempt the show that the work had been done when in fact it had not been done. This becomes obvious when CCTV Footage is obtained. The log note entries can be cross referenced to the CCTV footage. If it doesn’t match up then a personal injury lawyer will quickly realize that something is off. Chances are that something is off and and somebody is not telling the truth. Did your slip and fall accident take place during the daytime when visibility was good? Or did it take place in the evening when it was dark. If it was dark then was there proper lighting? Could the lack of lighting be a contributing factor to the slip and fall accident? If so, then perhaps your personal injury lawyer should put the party responsible for the lighting to the area on notice of the claim.
How did the slip and fall accident happen? Did the Plaintiff slip and fall on ice? Or did the Plaintiff slip and fall on their untied shoe lace; or on an flat surface which did not have a hint of snow, ice or sleet on it? This is very important. In order to have a winning case a Plaintiff must establish that the Defendant was at fault and responsible for his/her accident. The Plaintiff must establish negligence against a Defendant. Simply falling because a Plaintiff lost his/her concentration and tripped on his/her own two feet isn’t enough to establish a case; even if the injuries to the Plaintiff are catastrophic in nature. But if a Plaintiff can establish that it was the snow, ice or sleet which caused the fall; then the chances of having a winning case against a Defendant increase dramatically. Getting photos of the hazard which caused the slip and fall accident are very important. If that hazard which caused the slip and fall accident was ice; then the ice isn’t going to be around forever. Get photos of the ice right away before it gets cleared up or melts away. A personal injury lawyer, insurer, Judge and Jury will want to see photos of the ice which caused the slip and fall. Pictures say a thousand words. It’s amazing how photos of injuries and hazards can sway lawyers, Judges and Jurors one way or another. Photos are effective tools for lawyers in presenting their client’s cases. Lack of photos are not deal breakers; but they certainly detract from a Plaintiff’s case. Think of how much more powerful and compelling a Plaintiff’s case would be if they had photographs or the large patch of ice which caused their fall. This photo evidence cannot be recreated. Don’t expect any magical satellite photos to exist of the ice which caused your slip and fall. Don’t expect a Defendant property owner to preserve their video evidence of the fall. Don’t expect cameras to pick up your every move. Get the photos of the ice as soon as you can in order to strengthen your case. By the time you retain a personal injury lawyer it may be too late. Lots can change in a short period of time, including changes in the weather.