Search

Beware! Trees Ahead


“The plaintiff said that she did not see the stop sign because of the fact it was obstructed and, in the result, she did not stop before entering the intersection.” In Garrity v City of Saint John, 2019

the plaintiff moved for a summary judgment motion arguing there are no genuine issues requiring a trial. She alleged city’s negligence in “placing, inspecting and maintaining the visibility of traffic control devices, including the stop sign”.


J. Clending, presiding in the Court of Queen’s Bench of New Brunswick stated, dismissed the motion, stating:


· The duty of care owed by the defendant to the plaintiff is an issue to be argued at trial.


· If there is a duty of care owed, and if the City of Saint John breached the standard of care, another argument to be made is to whether there is any contributory negligence.


· It is further a question of law for the court to determine as to whether the system of maintenance in place in the City of Saint John met the standard of care.

.

In tort law, a duty of care

is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others.


In Kamloops v. Nielsen 1984

, the Supreme Court of Canada established a test to determine the existence of a duty of care. The test is:


(1) is there a sufficiently close relationship between the parties . . . so that, in the reasonable contemplation of the authority, carelessness on its part might cause damage to that person? If so,


(2) are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise?


Does the municipality owe a duty of care to a motorist to make sure its stop signs are properly maintained and are always visible to avoid any accidents? In Cantafio v. St. Hilaire 1999

, Justice D.A. Sulyma dismissed an action against the municipality that was brought in as a third party, in a case relating to an MVA (Collision with the defendant) that caused the plaintiff’s death. The allegation against the municipality was framed in negligence, in allowing a grove of trees, located at the intersection, to obscure a stop sign. Justice D.A. Sulyma stated:


As a legal argument, it must presume a duty on the part of the Third Parties to foresee motorists not observing the stop sign or accelerating by it and to arrange the trees accordingly. In my view, that is a ludicrous proposition and, one that is not upheld by any authority. Factually, it would have to be based on evidence that their actions affected Ms. Cantafio’s ability to react to the Defendant’s negligence.


In a similar case of tress obstructing a stop sign, in Campbell v. The City of Calgary (1984) 55 A.R. 73, it was held that the city had a duty to maintain the stop sign. The city did not follow any established inspection program on a periodic basis and was held liable [reference taken from Jacquelyn Barbara Davidson v. The Corporation of the City of Kamloops

].


Section 44 (1) of the Municipal Act, 2001, S.O. 2001, c.25

states:


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. 2001, c. 25, s. 44 (1).


Subsection (2) provides that:


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.


Further Subsection (3) provides for the following Defense:


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.


In Deering v. Scugog (Township), 2010

, Justice Howden J. presiding in the Ontario Superior Court of Justice stated:


Liability will only result where the situation gives rise to an unreasonable risk of harm to users of the highway, and the authority has failed to take reasonable steps to eliminate or reduce the danger within a reasonable time after it became aware, or ought to have become aware, of its existence.


In Fordham v. Dutton-Dunwich (Municipality)

, 2014 ONCA 891 Laskin J.A stated:


In brief, a municipality has a duty to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. In other words, a municipality’s standard of care is measured by the “ordinary reasonable driver”. Ordinary reasonable drivers are not perfect drivers; they make mistakes.


In view of the foregoing, the municipality may be held liable, provided following could be proven on the balance of probabilities:


1. The municipality knew or ought to have known about the tree and the unusual danger posed by the tree obstructing the view of the stop sign.


2. The municipality did not have a routine inspection program in place.


3. The municipality did not meet the reasonable standard of care.


Whether or not the standard of care has been met, is a question of fact that needs to be determined from the circumstances of the incident. From a claims professional point of view, while defending the municipality, immediate steps must be taken to investigate the circumstances of the incident. These steps may include (but not limited to):


a) The site of accident must be photographed right away. The placement of the tree with respect to the stop sign must be clearly photographed from the site of accident and relevant distances must be measured.


b) An accident reconstruction engineer may be appointed to determine the contribution of the tree, obstructing the stop sign, in causing the MVA.


c) Weather data must be obtained for the day of the accident to confirm whether it was a windy day or what season was it to confirm whether the tree had enough leaves that could have obstructed the view of the stop sign.


d) Site records must be obtained from the relevant municipal office depicting inspection records.


e) Statement(s) from municipal employee(s) must be recorded regarding the inspection program in place to determine whether a reasonable standard of care has been met.


f) Statement(s) from possible eyewitnesses and from the claimant must be obtained (an interview would be enough in case signed statements are not practical).


g) Previous claims history with respect to the site must be obtained, as may be applicable.


h) Video Surveillance footage (if available) must be obtained for the relevant time and date, as may be applicable.


Disclaimer

The content of this article is intended to provide general guidance only. A specialist must be consulted for specific circumstances

0 views
SIGN UP AND STAY UPDATED!