Nobody wants to be in an accident.
Nobody wants to slip and fall and get injured.
But if you are going to slip and fall, and get injured; believe it or not, there are some better places to slip and fall vs. some worse places to slip and fall.
And where a Plaintiff slipped and fell can spell the difference between a simple case vs. a complex case; or an easier case to advance vs. a more difficult case to advance.
A Plaintiff has no control over when, where and how they fall. But the location of the fall is more often than not the difference between cases which can be resolved quickly and quietly outside of Court vs. slip and fall cases which get tied up in years before the Courts which are more difficult and complicated.
Slipping and Falling on Private Property vs. Public (Municipal or City) Property
If you are going to slip and fall, it’s best to slip and fall on private property as oppose to public (municipal and city) property.
You wouldn’t think that this is the case, because one of the first rules of personal injury law, and any civil litigation for that matter is to sue parties with deep pockets because they can pay out on any potential judgment or award. It would make sense that a City or Municipality has deeper pockets than your run of the mill private property owner, or home owner. And you would be right in thinking that.
The problem with slipping and falling on public property is that the Municipal or City Defendant is afforded a variety of protections under the Municipal Act, 2001
There are different notice provisions for suing a City or Municipality for a slip and fall vs. a private property owner. To sue a City or Municipality, you need to give written notice within 10 days of the fall (s.44(10))
(10) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail to,
(a) the clerk of the municipality; or
(b) if the claim is against two or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities. 2001, c. 25, s. 44 (10); 2017, c. 10, Sched. 1, s. 4.
There is no 10 day notice provision against private property owners. This is a clear example of a protection being afforded to one Defendant, as opposed to another.
The standard of care to sue a City or Municipality is also much harder for a Plaintiff to prove vs. suing a private property owner. The private property owner has to be found negligent. But, a City or Municipality must be found to be grossly negligent, which is a higher threshold for a Plaintiff to establish:
(9) Except in case of gross negligence, a municipality is not liable for a personal injury caused by snow or ice on a sidewalk. 2001, c. 25, s. 44 (9).
In addition, the Municipal Act, 2001 also affords Defendant cities or municipalities defences, which are built in and defined, right in the act itself in sections 44(3) and (8)
(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) it took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met. 2001, c. 25, s. 44 (3).
(8) No action shall be brought against a municipality for damages caused by,
(a) the presence, absence or insufficiency of any wall, fence, rail or barrier along or on any highway; or
(b) any construction, obstruction or erection, or any siting or arrangement of any earth, rock, tree or other material or object adjacent to or on any untravelled portion of a highway, whether or not an obstruction is created due to the construction, siting or arrangement. 2001, c. 25, s. 44 (8).
All of these provisions are contained in the Act in order to protect Defendants from lawsuits. It makes it much easier for lawsuits to be defended, or kicked out of Court before they ever reach a full out trial. These same protections are not afforded to non municipal defendants. Which is why if a Plaintiff falls, it’s better for them to have fallen and injured themselves on private property as oppose to public property.
Here is yet another protection afforded to cities and municipalities to shelter them from lawsuits contained directly in the Municipal Act, 2001:
(15) A municipality is not liable for damages under this section unless the person claiming the damages has suffered a particular loss or damage beyond what is suffered by that person in common with all other persons affected by the lack of repair.
If your injury on public property is unique and deemed to be not in common with all others affected by the lack or repair, your case will not succeed.
There is an entire body of caselaw whereby Plaintiffs have advanced claims for damages against cities and municipalities across Ontario which have failed on account of the protections afforded to these public defendants under the Municipal Act, 2001. That is not to say that every case against a City or Municipality fails. It is only to point out that suing a public property owner carries its own unique challenges and hurdles as oppose to suing a private property owner.
The 10 day notice period alone is enough for an injured accident victim to contact a personal injury lawyer very quickly so that the notice provision doesn’t lapse on them. You need to have a fighting chance for the case so that it doesn’t fail before it gets up off the ground.