ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-2259
DATE: 2013/12/23
BETWEEN:
Bruce Walker
Harvey A. Swartz, for the plaintiff
plaintiff
- and -
City of Stratford
W. H. Peter Madorin, for the defendant
defendant
HEARD: November 20, 2013
BRYANT J.:
REASONS FOR JUDGMENT
The Evidence
[1] On September 18, 2010, the plaintiff Mr. Walker and his spouse travelled by car on a sunny fall day from their home in Cambridge, Ontario to Stratford, Ontario to attend the Garlic Festival. He drove to the city parking lots located in the downtown core area looking for a place to park his vehicle. Since the city lots were full, Mr. Walker drove around the core area looking for on-street parking.
[2] Municipal on-street parallel parking is permitted in the core area of Stratford on Church Street near the Scotia Bank branch. Municipal employees paint white lines on Church Street to indicate individual parking spaces for parking a vehicle. Municipal employees referred to these parking spaces as parking stalls. The parking stalls are busy and are used every day.
[3] Mr. Walker observed an empty parking stall on Church Street and parked his vehicle behind another vehicle parked in the next stall. Mr. Walker exited his vehicle and walked between his vehicle and the vehicle parked in front of his car. He said the rear portion of the vehicle parked in front of his car had encroached into his parking stall to explain why he did not observe any cracks or potholes in the pavement as he walked from his vehicle to the curb. Mr. Walker and his wife walked downtown and had lunch at a restaurant. He said he drank a glass of wine at lunch.
[4] Mr. and Mrs. Walker walked around the downtown area of Stratford after they finished lunch, but before returning to their vehicle. Mr. Walker said he recalled that the vehicle that had been parked in front of his car earlier that day had left the parking stall and a smaller compact car was now parked in front of his vehicle. Mr. Walker testified that he looked to see if there was approaching automobile traffic on Ontario Street.
[5] It was Mr. Walker’s evidence that as he stepped off the curb his right foot fell into a hole. He lost his balance and as he fell forward his weight shifted to his left knee. Mr. Walker put his hands in front of his body to prevent his head from striking the pavement. He testified that he twisted his right knee during the fall. He estimated that the crack/pothole was two or three inches deep and four or five feet long.[^1]
[6] The next day, Mr. Walker wrote a letter, dated September 19, 2010, to the mayor of Stratford. The letter informed the mayor that he stepped into a large crack/pothole in the pavement in the front of his parked car. He complained of a throbbing right knee that he believed was internally damaged. Mr. Walker also informed the mayor that his left knee bled during the trip home.
[7] On October 18, 2010, the mayor responded to Mr. Walker’s letter. The mayor informed Mr. Walker that he had forwarded his letter to the public works department, that the roadway had been inspected, and that appropriate measures had been taken to address his complaint.
[8] Mr. Walker attended his family physician the next day. The family physician referred him to Dr. Chris, an orthopedic specialist. Dr. Chris conducted surgery to repair the torn meniscus of Mr. Walker’s right knee.
[9] The municipality did not challenge Mr. Walker’s evidence that he fell on Ontario Street on September 18, 2010 while walking to his car. Counsel for the plaintiff filed a medical brief in support of the injuries suffered by Mr. Walker. Counsel for the municipality did not challenge the injuries Mr. Walker suffered as a result of his slip and fall.
[10] Counsel for Mr. Walker read in the examination for discovery of Mr. Lyndon Kowch, the manager of public works for the City of Stratford. Mr. Kowch said that Mr. Wilton, a public works supervisor, was assigned the task of inspecting the municipal roadways to determine their condition. Mr. Kowch said that the municipality was required to inspect the municipal roadways like Church Street every 14 days.
[11] Mr. Kowch said he first learned of the slip and fall accident on or about October 6, 2010. He said that the crack/pothole ran along the painted line between the parking stalls as depicted in the photograph (Exhibit 6). Mr. Kowch did not measure the dimensions of the crack/pothole. The insurance adjuster photographed the crack/pothole on or about October 6, 2010 when it contained water. Mr. Kowch instructed a public works employee to patch the parallel parking stall on Church Street where the fall occurred when it was dry.
[12] Mr. Wilton is responsible for inspecting the highways in the southern part of the municipality. He drives a municipal truck over the roads in the south half of the municipality looking for potholes or obstructions. Mr. Wilton’s inspection report, dated September 3, 2012, stated, “all OK at time of inspection”. Mr. Wilton had no present memory of conducting his inspection on September 3, 2012.
[13] No inspection reports were filed for the period between September 4, 2010 and September 18, 2010, (the date of Mr. Walker’s slip and fall) or between September 18, 2010 and October 18, 2010 (the date of the mayor’s reply letter to Mr. Walker).
[14] It was Mr. Kowch’s evidence that Church Street is a class 4 highway requiring it to be inspected every 14 days: see Minimum Maintenance Standards for Municipal Highways, O. Reg. 239/02, s. 3, Table. A crack that is less than three meters long, five centimetres wide, and five centimetres deep, is deemed to be in a state of repair. Mr. Walker, the public works employee, and the adjuster testified that a motor vehicle could traverse the Church Street crack/pothole depicted in the photograph.
[15] Mr. Kowch acknowledged that a person’s foot would fit within the Church Street longitudinal pothole. He agreed that a person would not see the pothole if a car was parked over the white line separating the two parking stalls. He said the parking stalls on Church Street are used regularly by customers of the bank, visitors, and inhabitants of Stratford.
[16] It was Mr. Wilton’s evidence that he started his inspection on September 3, 2010 at 9:00 a.m. He estimated that he would have inspected Church Street approximately two hours later. He does not recall checking the area in front of the Scotia Bank branch or if any cars were parked on Church Street near the bank at the time of his inspection. He had no memory as to whether the crack/pothole had been inspected between September 3, 2010 and October 6, 2010, or when his next inspection was performed.
[17] Mr. Arnold is a claims adjuster and he attended the site of the slip and fall on October 6, 2010. He observed the painted line between the first and second parking stall near the Scotia Bank branch where the fall occurred. He measured the dimensions of the crack/pothole: 44 inches long, 5 inches at its widest and 1¾ inches deep. It was his evidence that the deepest and widest part of the crack/pothole was one-third the length of the crack as one walked from the curb.
[18] Mr. Walker testified that he fell when he stepped into the crack/pothole on the municipal roadway and suffered an injury to his right knee. Counsel agreed that Mr. Walker’s damages for pain and suffering were $25,000. Counsel further agreed that OHIP’s subrogated interest was $2,872.18.
[19] The sole issue in dispute was whether the municipality was liable for the injuries and damages suffered by Mr. Walker.
The Positions of the Parties
[20] Counsel for Mr. Walker submits that the slip and fall injury was caused by the municipality’s failure to maintain the roadway. Counsel further submits that the parking stalls are frequently used by the public, such as the customers of the bank. Counsel argues that the municipality did not file a report for the period before September 3, 2010 or during the period between September 3, 2010 and October 6, 2010. The municipality failed to establish that it complied with the 14 day minimum standard for inspecting highways of the class at issue.
[21] It was the position of counsel for Mr. Walker that the municipality was responsible for maintaining the roadway and owed a duty of care to Mr. Walker. Counsel submitted that the municipal system for inspecting the highway was not followed in September or October 2010 and that the public works employee did not inspect the parking stalls to determine a need for repair. Counsel argued that the municipality failed to conduct inspections as required and as a consequence failed to warn members of the public using the parking stalls of the condition of the highway.
[22] Counsel for the defendant municipality submits that the municipality complied with the standards as set by Minimum Maintenance Standards for Municipal Highways, O. Reg. 239/02, made pursuant to the Municipal Act, 2001, S.O. 2001, c. 25 (“Municipal Act”). Counsel submitted that motor vehicles could traverse the crack/pothole and that the municipality was not required to repair a crack in the highway unless the crack is longer than three metres. Since the crack/pothole was 44 inches long, it did not infringe the minimum regulatory standard.
[23] Counsel for the municipality submitted that a municipality is required to maintain highways in reasonable condition for motor vehicles, even if the municipality is aware that pedestrians frequently cross the highway that is otherwise reserved for vehicular traffic: see Holmes v. Kingston (City), 2009 22556 (ON SC).
Analysis and Decision
[24] I make the following findings of fact:
(1) the municipality created parking stalls on the municipal highway at issue in this case;
(2) the public works employees knew that the designated parking stalls were frequently used by members of the public to park their vehicles;
(3) the plaintiff parked his vehicle in a designated parking stall on a highway;
(4) the rear of the vehicle parked in front of the plaintiff’s car concealed the condition of the highway between the parking stall where the plaintiff parked his vehicle and the next parking stall;
(5) the municipality knew that a person who parks his/her vehicle at one of the parking stalls on Church Street would need to walk on the surface of the highway to reach the nearest curb and sidewalk (Ryan v. Stratford (City), [1996] O.J. No. 4725, at para. 12 (Gen. Div.-Sm. Cl. Ct.));
(6) the slip and fall occurred when the plaintiff was walking on the highway between his vehicle and the vehicle parked in next parking stall;
(7) the plaintiff could not reach the driver’s side of his parked vehicle without walking between the parked vehicles in the adjoining parking stalls;
(8) the longitudinal pothole was not in a reasonable state of repair for persons walking from their vehicles to the curb or from the curb to their vehicles;
(9) the municipal public works department could be expected to have known about the deficient state of repair of the highway; and
(10) the public works department failed to take reasonable steps to repair the longitudinal pothole to protect Mr. Walker from falling.
[25] The Ontario Municipal Act and regulations made thereunder provide that a municipality is liable for the maintenance of highways within its jurisdiction. Section 44 of the Municipal Act provides:
Maintenance
- (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
Liability
(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.
Defence
(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.
[underline added]
Regulations
(4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them.
[26] I find that the public works department (1) could reasonably have been expected to have known about the state of repair of the highway; (2) did not take reasonable steps to prevent the default from occurring.
[27] The Minimum Maintenance Standards for Municipal Highways, O. Reg. 239/02, prescribe the minimum standards of repair for highways under municipal jurisdiction: see s. 2(1). Municipalities are not required to maintain their streets according to an ideal standard of perfection. Generally, when highways are at issue, the duty owed by the municipality is to keep them in a state fit for the type of traffic that occurs on the highway, which is typically vehicular traffic.
[28] In Holmes v. Kingston (City), supra, a university student caught her left shoe in a crack in the pavement of a municipal highway causing her to fall and suffer a fracture. The municipality was aware that students and others crossed the highway in the middle of the block instead of crossing the highway at the crosswalk. Pedlar J. stated at paras. 19-22:
… Roads are primarily intended for motor vehicle traffic and pedestrians using them cannot reasonably expect them to be in perfectly flat and level condition at all times in all locations. … Pedestrians, who chose to convenience themselves by crossing a roadway primarily designed for motor vehicle traffic, excluding highly unusual circumstances, must take the roadway as they find it. … The cases relied upon by the plaintiff, which resulted in a roadway being found to require a higher standard of care for pedestrian traffic, included a designated crosswalk area or highly unusual circumstances where the sidewalk had been blocked by the municipality and the pedestrians were forced to use the roadway. … There may, in fact, be circumstances where an increased standard of care is required for pedestrian use of a roadway. [underline added]
[29] Ian MacF. Rogers, Q.C., in the seminal The Law of Canadian Municipal Authorities, vol. 3, 2d ed. (Toronto: Carswell, 2009) (loose-leaf) (citations omitted), makes general comments about the state of repair of highways:
[I]f the municipality assumes the duty of constructing or repairing a street, it must leave it in a state so as to be reasonably safe for those who use it. (p. 1250.1).
The court has frequently stated that ‘repair’ is a question of fact. It is local and relative because what may be good repair in one locality may amount to non-repair in another. The extent of the duty therefore depends on conditions and surrounding circumstances. They have taken into consideration many factors such as the requirements of the local traffic, the means at the command of the council, the ordinary purposes for which the road is used and varying conditions likely to arise. (pp. 1252-1253).
The extent of the statutory duty of repair is to be gauged by the requirements of the particular locality. What would constitute neglect of duty in one place might not be so at another place. The character and population of the area are to be considered as well as the amount of the traffic using the road. (p. 1253).
The obligation, as regards pedestrians, does not extend to portions of the street outside the crossings where they have no reason to be or at least the degree of care is not as great as it is for sidewalks and crossings. A pedestrian is not entitled to cross the street, except at an intersection or pedestrian cross-walk, and a city is not liable for pedestrians falling anywhere else other than at intersections when a sidewalk could have been used to reach them. The city has an obligation to maintain streets for cars, not pedestrians; the sidewalk is preserved for pedestrians. (p. 1259). [underline added]
[30] The municipality clearly designated that part of the highway where the slip and fall occurred for on-street parallel parking. The parking stalls are clearly defined by white lines painted on the roadway by municipal employees. The public works employees knew that members of the public frequently parked their vehicles on Church Street and walked to the Scotia Bank and other nearby stores/restaurants.
[31] Mr. Walker was required to walk on the roadway to reach his parked vehicle. Mr. Walker took the shortest and safest route to get into his parked vehicle. Unlike the plaintiff in Holmes v. Kingston (City), Mr. Walker was not a jay-walker who was attempting to reach the opposite side of the street. I find that the municipal parking stalls were created by the municipality to allow vehicles to be parked. It is reasonable to infer that drivers and occupants would walk on the highway to reach the curb. Thus, the area of the parking stalls where the accident occurred must be suitable for both vehicular and pedestrian traffic, similar to a crosswalk. Accordingly, the municipality was required to maintain the highway where the slip and fall occurred to be fit for pedestrian traffic.
[32] The municipality knew or ought to have known that pedestrians would walk on that part of the highway where the slip and fall occurred. In Ryan v. Stratford (City), at para. 12, the deputy judge stated: “In the case at bar, parking was permitted in the very spot where the plaintiff parked. It would be impossible to access the rear or passenger side of a vehicle without stepping in or near the depression here involved.”
[33] Courts have recognized that the state of repair or non-repair of highways may differ for vehicular traffic and pedestrian traffic (Sutherland v. Town of Port Credit [1968] vol. 1967 256 (ON CA), 1 O.R. 175 (O.C.A.). The Law of Canadian Municipal Authorities, supra, vol. 3, 2d ed. s. 235.81) states:
The test to be applied to determine whether a municipality has fulfilled or breached its statutory duty to maintain a road in a reasonable state of repair is whether the conditions that existed at the time of the accident presented an unreasonable risk of harm.
I find that:
(1) the municipality failed to meet the applicable minimum standards requiring the highway to be inspected every 14 days (see Bellefleur v. London (City), [2002] O.J. No. 3836, at paras. 6-7 (S.C.J));
(2) the municipality did not inspect the part of the highway, namely, the parking stalls used by pedestrian traffic, for cracks or potholes.
Thus, the municipality failed to maintain the highway in accordance with the applicable minimum standards. I find that the longitudinal pothole created an unreasonable risk of harm for Mr. Walker and other pedestrian users of the parking stall on Church St. where the accident occurred. I award general damages of $25,000 for pain and suffering, $1,390.45 for disbursements and $2,872.19 to OHIP for its subrogated interest.
[34] I received cost submissions from counsel. Counsel for the plaintiff submitted costs should be awarded to the plaintiff in the amount of $25,000. Counsel for the municipality agreed that costs should be awarded to the successful party in the amount of $25,000, subject to s. 49 offers to settle. Counsel representing the plaintiff and defendant are senior members of the bar and I am not prepared to disagree with their joint position on their assessment of costs.
[35] Counsel for the plaintiff filed an offer to settle of $24,812.66 on October 17, 2013. The judgment obtained by the plaintiff is more favourable than the offer to settle and the plaintiff is entitled to costs on a substantial indemnity scale after October 17, 2013.
“Justice A. W. Bryant”
Justice A. W. Bryant
Released: December 23, 2013
COURT FILE NO.: 11-2259
DATE: 2013/12/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bruce Walker
plaintiff
- and -
City of Stratford
defendant
REASONS FOR JUDGMENT
Justice A. W. Bryant
Released: December 23, 2013
[^1]: Some witnesses called it a crack and others called it a pothole so the court referred to it as a crack/pothole.