CITATION: Costerus v. Kitchener (City), 2017 ONSC 6030
COURT FILE NO.: 11-4860-SR
DATE: 25 Oct 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KRISTA COSTERUS
Plaintiff
– and –
THE CORPORATION OF THE CITY OF KITCHENER
Defendant
Alexandra Victoros, for the Plaintiff
Stephen Brogden, for the Defendant
HEARD: September 12 and 13, 2017
the honourable mr. justice r. j. nightingale
REASONS FOR JUDGMENT
[1] The plaintiff brings this action against the defendant municipality because of injuries she sustained on January 26, 2010 when she slipped and fell on ice while walking on the sidewalk owned and maintained by the defendant.
[2] The plaintiff’s damages have been admitted by the defendant. The only issues at trial were whether the defendant was grossly negligent in failing to meet its obligations to maintain the city sidewalk where the plaintiff fell and whether the plaintiff was contributorily negligent in causing her own injuries.
Krista Costerus
[3] Before leaving for her Medix School in the early morning of January 26, 2010, Ms. Costerus, now age 37, took her dog for a walk and noticed that the sidewalks were icy and it was snowing out. She then left for school wearing her running shoes even though she had two pairs of winter boots.
[4] She commenced her walk to class of about 3 blocks along Sterling Street at approximately 7:30 a.m. The sidewalks were icy with some light snow covering. She described that they were icy and ice covered except where there were residential areas where the ice had been cleared having been salted by the homeowners. She was not sure how thick the ice was although it was easy to take notice of it.
[5] She walked slower on the sidewalk as it was icy and she didn’t want to fall. Her evidence was that that sidewalk between her residence on Weber Street and her school was never maintained by the defendant in the morning when she walked to school although by the afternoon when she finished school, it was always clear.
[6] She had walked approximately 3 blocks on those icy sidewalks when suddenly at approximately 7:45 a.m. she fell causing her injuries because of the ice on the sidewalk which she admitted she had observed ahead of her as she approached before she fell. She admitted she could have walked on the roadway rather than on the icy sidewalk in that area to avoid it but hadn’t thought about it.
[7] She admitted she had never called the city to complain about the icy conditions and lack of maintenance on those sidewalks before this incident stating she didn’t do so as it was not relatively serious.
[8] The sidewalk area where she fell was at a city bus stop but where students at the adjacent high school also got off their school buses in the morning.
Chad Allen Heise
[9] Mr. Heise was the road supervisor for the defendant municipality at the time. His job included monitoring and assessing the defendant’s winter sidewalk conditions and responding accordingly.
[10] The city’s sidewalk maintenance areas were divided into 13 routes in addition to the two downtown routes, each of which took 5 to 6 hours to complete.
[11] The city received regular weather forecast reports four times daily. Mr. Heise admitted that as early as Thursday, January 21, 2010, a drop in temperature to 0°C after a rainfall with a wind chill factor was forecast to occur sometime in the afternoon/evening of Monday, January 25, the day before the plaintiff slipped and fell. He was also aware that Sunday, January 24 was going to be a wet day with rain forecasted as well as mixed precipitation on Monday, January 25 with a wind chill that could freeze the rain if the temperature was below 0°C.
[12] The weather forecast reports he had on Monday, January 25, 2010 morning and afternoon predicted showers in the morning and mixed precipitation of rain and snow in the afternoon with overnight temperatures of 0°C to -1°C by 6:00 p.m., -1°C to -3°C by 9 to 10:00 p.m., and from -1°C to -2°C to -3°C overnight. He suggested that the ground temperature was significant in that it could be up to a couple of degrees warmer than the air. He also stated that if the temperature was above 0°C he couldn’t apply salt to the sidewalks as the rain would wash it away. He was also aware on January 25 that all the weather forecasts also predicted significant winds resulting in a wind chill factor of between -7°C to -10°C overnight by midnight. He admitted that a significant wind chill could affect ground temperatures and cool the sidewalk surface. He was aware of the consequences of a resulting thaw-freeze cycle that could be dangerous to pedestrians using the city sidewalks.
[13] On January 25, 2010, he sent out 2 operators one each for the north and south ends of the city to monitor and maintain the sidewalks. I accept his evidence that he initially made a clerical error in his notes that both operators went to the north side. It would not make sense that no operator would be sent to the south end of the city. However, he does not know whether or when salt was applied to any or which sidewalks on January 25.
[14] On the morning of the plaintiff’s fall on January 26, he stated he observed the city sidewalks when he drove into work that morning at 6:30 a.m. although it was dark out and he didn’t actually get out of his vehicle to check them. He then sent out 13 trackless vehicles at 7 a.m. for the balance of the city’s sidewalk routes although two operators had already been sent out to maintain the downtown area at 4 a.m.
[15] Despite knowing on January 25 that a thaw-freeze situation was forecast for that Monday overnight, neither the evening supervisor nor did Mr. Heise call in city maintenance workers before their 7 a.m. regular shift start on January 26 to deal with those icy conditions that were likely to have formed overnight on the sidewalks. He stated that the thaw-freeze cycle did not merit a change in the operators start time of 7 a.m. The reason for that was that although the defendant city had a policy allowing him to call in the trackless operators earlier before their 7 a.m. start time if there was an accumulation of 8 cm of snow, it had no policy at all at the time with regard to handling thaw-freeze conditions such as this. Because of that, he and the night supervisor were not permitted by the city to call in the operators before 7:00 a.m. to address icy conditions on the city sidewalks. Accordingly, no consideration was given by him or the night supervisor to call in the city’s trackless maintenance drivers earlier than 7:00 a.m. on Tuesday, January 26, 2010, including downtown operators, to deal with the thaw-freeze conditions that had occurred on the sidewalks after the last trackless maintenance for the sidewalks ceased at 3 p.m. the day prior.
[16] The defendant municipality at the time had no minimum maintenance standards for its sidewalks. Mr. Heise also admitted that sidewalk maintenance supervisors including the overnight supervisor and himself did not check with road patrol operators in order to determine what the conditions of the sidewalks might be for the presence of snow or ice. It is significant that no evidence was provided by the city from the night supervisor responsible for monitoring the sidewalks regarding his knowledge of the sidewalk and weather conditions over the evening of January 25, 2010. It appears that he made no inspections of the sidewalks overnight to check for the presence of ice notwithstanding the thaw-freeze cycle that was happening that evening. In reality, there was no system of regular inspections of the city’s sidewalks and the only evidence was that Mr. Heise looked at the sidewalks from his vehicle when he was coming into work at 6:30 a.m.
[17] However, Mr. Heise confirmed that the city’s policy did allow its operators to be called in before 7 a.m. to ensure the removal of snow in the downtown area. That in fact occurred on January 21 when operators were called in at 4 a.m. in the downtown area in order to ensure the removal of snow by noon hour.
[18] No written documentation of whatever policy the city had for winter maintenance of this sidewalk was provided at trial through Mr. Heise or otherwise. Moreover, there was no evidence of Mr. Heise or otherwise of any priority in the city policy given to its employees outside that downtown area to remove ice and snow from high pedestrian traffic areas including those sidewalks servicing schools and bus stop areas such as the one in issue in this action.
[19] Mr. Heise admitted he was now aware that the sidewalk area where the plaintiff fell was a transit bus stop with heavy pedestrian traffic also because of the school bus drop-off area. The city’s operators including Mr. Snyder were entitled to apply salt to the sidewalk if required.
Kenneth Snyder
[20] Mr. Snyder had considerable experience operating a trackless vehicle for the city’s sidewalk maintenance program. His vehicle was equipped with a front plow and rear salter.
[21] He was responsible for Route 6 which included the sidewalk area where the plaintiff fell on January 26, 2010. He confirmed the route normally took 5 to 7 hours to complete. He would normally plow the sidewalk of snow even if there was a minimal amount and apply salt if he saw ice on this route or if the supervisor instructed him to do so.
[22] He decided where he went first but admitted he did not give any priority to the sidewalk area where the plaintiff fell when he started his route usually around 7:45 a.m. after he had loaded the salt onto the trackless vehicle. Rather, he went to the Kinsmen Centre first. He was aware that the sidewalk where the plaintiff fell was a high traffic area for pedestrians because of it being a bus stop for city transit buses and school buses for the adjacent secondary school and believed classes started between 8 and 9 a.m. although he wasn’t sure.
[23] On January 25, 2010, the day before the plaintiff’s fall, he completed his routes which may have included Route 6 by 3 p.m. applying some but not a significant amount of salt to the sidewalks. However, he had no specific recollection of his going to the sidewalk where the plaintiff fell the next day. He was aware of problem areas on the sidewalks for five of the routes he did that day and stated he went there to deal with them.
[24] On January 26, 2010, he commenced his shift at 7 a.m. but was not able to start his Route 6 until approximately 9 a.m. because of a breakdown of his trackless vehicle. Accordingly, he probably did not get to the sidewalk where the plaintiff fell before 10 a.m. that morning at the earliest. The inference and conclusion from his evidence are that even had this machine not broken down that morning, he would not likely have arrived there to apply salt before the plaintiff fell on the sidewalk around 7:45 a.m. He confirmed he had no discretion to come in earlier to start his shift on that route before 7 a.m.
[25] He gave no evidence to what the conditions of the sidewalk were including to what extent they were ice covered in the area where the plaintiff walked and eventually fell on January 26, 2010. Accordingly, her evidence of the significant icy conditions on those city’s sidewalks that morning is not contradicted by the defendant.
Analysis
[26] Under Section 44 of the Municipal Act, 2001, it is the responsibility of the city to keep its highways (which include sidewalks) in a state of repair that is reasonable in the circumstances including the character and location of the site. If it defaults in that obligation, it is liable for all damages any person sustains because of that subject to the Negligence Act.
[27] Section 44 (3) of the Act states that a municipality is not liable for failing to keep its sidewalks in a reasonable standard care if:
a) it did not know and could not reasonably have been expected to have known about the state of repair of a highway;
b) it took reasonable steps to prevent the default from arising; or
c) at the time the cause of action arose, minimum standards applied to the highway and to the alleged default and those standards have been met.
[28] Section 44 (9) of the Act states that except in a case of gross negligence, the municipality is not liable for personal injury caused by snow or ice on the sidewalk.
[29] In this case, there is no dispute that the plaintiff’s fall occurred on the defendant’s sidewalk and that timely notice was provided by her to the defendant as required under the Act. The only issues are whether the defendant municipality failed in its duty to maintain the sidewalk in a reasonable state of repair, whether its failure constitutes gross negligence and whether and to what extent the plaintiff was contributorily negligent in causing her own injuries.
[30] The weather reports available to the city in the days before the plaintiff’s fall and in particular those of January 25th 2010 predicted that there would be mixed precipitation throughout the day of January 25, 2010, above 0°C temperatures during the day falling during the evening overnight to a low of -2°C or -3°C. The weather reports also confirmed that there would also be a significant wind chill factor that evening which could contribute to the freezing of the precipitation in the thaw-freeze cycle overnight.
[31] I accept the evidence of the plaintiff that there was a significant amount of ice on the sidewalks owned and maintained by the defendant city with a little snow covering over the three or four blocks the plaintiff walked on her way to school that morning. That ice had obviously formed because of the thaw-freeze cycle overnight likely starting around 9 to 10 p.m. as predicted by the weather reports the city had. In particular, that ice was clearly present even though it was not on sidewalks where homeowners whose properties abutting them had already applied salt to them. Notwithstanding the weather records predicting a likely thaw-freeze cycle that evening before the plaintiff’s fall, no inspection of the city sidewalks was conducted that evening overnight or in early morning hours before 7 a.m. by city staff.
[32] This is not a case where there was a single small patch of ice located only where the plaintiff fell despite the reasonable efforts of the city to remove it by applying salt or sand to its sidewalks beforehand. The plaintiff’s evidence, which I also accept as it is confirmed by Mr. Snyder, was that those sidewalks were never maintained by the city clearing ice and snow from them in the early mornings when she walked to school around 7:30 to 8:00 a.m. or when the students had arrived by bus at their high school although the city had done so by the time she finished school in the afternoon.
[33] Although there was no evidence of salt actually being applied on January 25 by Mr. Snyder to the sidewalk where the plaintiff fell, no salt or sand was applied or ice removal operations conducted at all on that sidewalk area after 3 p.m. on January 25 once the thaw-freeze conditions occurred which were predicted and likely that evening to the knowledge of the city.
[34] There were no minimum winter maintenance standards applicable to the city’s sidewalks at the time. The only evidence of the city’s winter maintenance sidewalk policy was that it allowed Mr. Heise or the evening supervisor to call in the operators before their regular 7 a.m. start time if there was more than 8 cm of snow or if required to clear the downtown area. There was no evidence of any city policy directing that its overnight sidewalk maintenance supervisor conduct an inspection of its sidewalks when a thaw- freeze cycle or freezing rain was predicted. There is no evidence that any such inspection was conducted in the overnight hours of January 25, 2010.
[35] Most significantly, the sidewalk supervisors were not permitted because of the city’s policy to call in those operators because of ice forming on its sidewalks overnight because of the thaw-freeze cycle. There was no evidence from the city either that its policy permitted the operators to be called in earlier than 7 a.m. if there was freezing rain overnight. Both of these conditions would obviously be at least as dangerous or likely more dangerous for pedestrians using the sidewalks than the presence of just 8 cm of snow on them.
[36] Moreover, there was no city policy directing priorities to be given by its operators to remove ice and snow from high pedestrian traffic areas on sidewalks at bus stops used by the city’s transit buses and students getting off school buses on their way to their adjacent schools. Mr. Snyder also gave no priority to attend there that morning or on prior mornings to inspect and, if necessary, apply salt on the sidewalks despite his knowledge that he had or ought to have had of the high pedestrian traffic areas there early those mornings.
The Law
[37] The law applicable to the potential liability of the defendant city based on its alleged gross negligence because of this failure to reasonably provide winter maintenance for its sidewalks was canvassed in detail by Tranmer J in Ryan v. Sault Ste. Marie (City) 2008 CarswellOnt 8928, 55 M.P.L.R. (4th) 191 which was confirmed in the Ontario Court of Appeal at 2009 ONCA 344.
[38] The Supreme Court of Holland v. Toronto (City) (1927) 1926 CanLII 10 (SCC), SCR 242 SCC described the term gross negligence as “very great negligence”. Circumstances giving rise duty to remove a dangerous condition, including the notice, actual or imputable, of its existence, and the extent of the risk which it creates, the character and the duration of the neglect to fulfill that duty, including the comparative ease or difficulty of discharging it, are elements that vary in indefinite degree and are important, if not vital factors in determining whether the fault attributable to the municipal corporation is so much more than merely ordinary neglect that it should be held to be very great or gross negligence.
[39] The Ontario Court of Appeal in Crinson v. City of Toronto 2010 ONCA 44 confirmed that gross negligence does not require proof of misconduct that is willful, wanton or flagrant. The Court held that to a great extent, the determination of gross negligence depends of the facts of each case. It depends on the application of a less precise definition of gross negligence, interpreted through the prism of common sense. If the municipality permits a slippery, icy sidewalk in a busy area of the city to remain unprotected or ignores it altogether and someone is injured, that would constitute gross negligence.
[40] Circumstances giving rise to a finding of “very great negligence” are as diverse as the weather conditions, municipal policies, equipment quality and quantity and condition, operator expertise, inspection particulars and other enumerable and unpredictable factors. The Court must assess the actions of the municipality in the circumstances of each case. Thum v. Elliot Lake (City) (1999) M.P.L.R. 9#d) 154 (Ont.S.C.)
Conclusion
[41] In this case, the evidence was that the city had received no prior complaints that winter of its maintenance for the sidewalks in the area where the plaintiff fell. However, it is clear on the evidence that the city’s winter maintenance staff had received several weather reports prior to the plaintiff’s fall on January 26, 2010 which predicted mixed precipitation for the city the day before on January 25, temperatures then falling below 0°C by the evening of January 25, 2010 and a significant wind chill factor that evening. All of this likely resulted in significant ice forming on sidewalks by the evening of January 25 continuing throughout overnight because of the thaw–freeze cycle which was as dangerous or likely more dangerous than only snow on those sidewalks for pedestrians in early morning hours of January 26, 2010.
[42] Despite their knowledge of the likely thaw–freeze cycle resulting in ice forming on city sidewalks from early overnight that evening, no inspections were made of the city sidewalks by the night supervisor who did not give evidence at trial. The evidence was that the supervisor would not have checked with any road maintenance operators to obtain information from them of the condition of its sidewalks and presence of ice. Moreover, although the city’s policy permitted supervisory staff to call in its winter maintenance operators before its regular 7 a.m. start time to tend to the city sidewalks if there was more than 8 cm snow, it did not permit them to be called in earlier if there were icy conditions on the sidewalks because of a thaw-freeze cycle or freezing rain. There was no evidence that the city’s policy required its sidewalk maintenance supervisors to inspect and check its sidewalks overnight for ice formation during thaw-freeze cycles.
[43] One of the main issues in this case is whether or not the city’s general policy with respect to ice and snow removal from its sidewalks in this case was a reasonable one. Billings v. Mississauga (City) 2010 ONSC 3101; Cumberbatch v. City of Toronto 2015 ONSC 4859.
[44] In my view, it was not a reasonable policy to permit the city’s sidewalk maintenance staff to be called in before its regular start time of 7 a.m. when there was more than 8 cm of snow on the sidewalks overnight but not when there was ice that had formed on the sidewalks overnight because of thaw–freeze cycles or freezing rain. The city knew or should have known that thaw-freeze cycles overnight would cause at least equal or more hazardous sidewalk conditions for pedestrians early in the morning than 8 cm of snow.
[45] There was no written policy of and no evidence as to what instructions or guidance, if any, were provided to its sidewalks maintenance supervisors regarding their inspecting sidewalks overnight for hazardous conditions caused because of ice or snow or both. In fact, the policy of the city was not to allow its supervisors to call in its operators earlier than their scheduled start time of 7 a.m. to try and address the hazardous conditions caused by ice formations on the sidewalk overnight because of thaw-freeze or freezing rain conditions when there wasn’t 8 cm of snow.
[46] In this case, that policy was not reasonable especially when the hazardous icy conditions on the sidewalks could have been dealt with before the plaintiff’s fall had the city’s supervisors been instructed to inspect the sidewalk icy conditions overnight during the thaw–freeze cycle for ice formation causing hazardous conditions on its sidewalks and to call in their operators earlier than 7 a.m. to start removing the ice from those sidewalks especially in high traffic areas such as the one in question in this case.
[47] In particular, it is significant that the city had experimented with its supervisors to have the regular start times for its operators commencing at 5 a.m. rather than 7 a.m. which was subsequently stopped only because of noise complaints from the neighbors. That evidence appears to confirm the city’s awareness of its obligations to address in a timely fashion the hazardous conditions for pedestrians caused on its sidewalks overnight.
[48] As indicated above, this is not a situation like the facts in Richer v. Elliot Lake (City) 2011 ONSC 8017 where the municipality responded to the overnight thaw-freeze cycles by applying sand and salt quickly to its sidewalks and long before the plaintiff fell on a patch of ice after experiencing no slippery or icy conditions on the sidewalks before he fell.
[49] Moreover, this is not a situation like the facts in Gertzbein v. Vaughn (City) [2004] O.J. No. 4265 where the defendant municipality had a policy in place for dealing with ice conditions on its sidewalks, a system of inspection of its sidewalks and night and day patrols of its sidewalks to assess the situation and monitor the work that needed to be done.
[50] The Ontario Court of Appeal in Dorschell v. Cambridge (City) (1980) 1980 CanLII 1743 (ON CA), 30 O.R. (2d) 714 confirmed that the lack of a policy by a municipality or a policy of not taking any systematic or regular action to remedy snow or ice conditions was evidence of serious negligence.
[51] In my view, the facts in this case are not significantly different than those facts in the Ryan v. Sault Ste. Marie decision, above, where the municipality was held to be grossly negligent, among other reasons, because of its failure to call in their sidewalk operators prior to their normal start times because of hazardous sidewalk conditions caused by thaw-freezing occurring overnight of which the municipality was aware.
[52] The plaintiff has established on a balance of probabilities that the defendant city was grossly negligent in its failure to maintain its sidewalks at the time of the plaintiff’s fall.
Contributory Negligence
[53] The plaintiff’s evidence is clear that she was aware that morning of the icy sidewalks that were partially snow covered before she left her residence for school. Nevertheless, she made the decision to leave her residence that morning wearing only her running shoes instead of wearing her winter boots which likely would have provided better traction for her on the sidewalks.
[54] The evidence was that she was walking carefully on the sidewalks watching for the ice ahead of her. She in fact saw the ice on the sidewalk where she eventually fell as she approached it. Her evidence was that she could have avoided that area altogether by walking on the roadway around it. There was no evidence of any significant vehicular traffic on that roadway at the time.
[55] Because of her choosing to wear her running shoes at the time knowing the icy conditions on the sidewalk rather than winter boots and her ability to reasonably avoid the icy sidewalk where she fell altogether by walking around it, her actions constitute negligence which contributed to causing her own injuries. I assess her contributory negligence at 50% in these circumstances.
Decision
[56] The plaintiff shall have judgment for 50% of the damages which the parties have agreed upon.
[57] If there is any issue with respect to the plaintiff’s entitlement to prejudgment interest, the parties can make brief written submissions thereon within 15 days of this decision.
[58] If the parties are unable to agree on the issue of costs of this action, the plaintiff can make brief submissions of no more than three pages in length together with a bill of costs and copies of any relevant offers to settle within 15 days of this decision. The defendant shall similarly be entitled to respond within 10 days thereafter. If no submissions are made within these time frames, the parties will be deemed to have settled the issue of costs.
The Honourable Justice R.J. Nightingale
Released: October 25, 2017
Costerus v. Kitchener (City), 2017 ONSC 6030
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KRISTA COSTERUS
Plaintiff
– and –
THE CORPORATION OF THE CITY OF KITCHENER
Defendant
REASONS FOR JUDGMENT
The Honourable Mr. Justice R.J. Nightingale
Released: October 25, 2017