First posted to The Public Record's Microblog at https://now.thepublicrecord.ca
The City of Hamilton is liable for potentially millions of dollars after being found negligent in their maintenance of a suburban intersection identified as high-risk and the scene of numerous collisions.
As Ontario Superior Court of Justice Antonio Skarica writes:
The cost of repainting was a meagre $100, at most, and there is no explanation at all as to why this stop line and the recommendations to repaint it were neglected while the city was aware of the increasing dangerousness of this intersection.
On April 29, 2006, around a blue 1999 Grand Caravan collided with a Buick sedan in the intersection of Brock Road and 5th Concession West in Flamborough.
The collision left Micheal Chiocchio, a passenger in the Caravan, with severe spinal injuries and rendered him quadriplegic.
A decade of legal litigation later, the driver of the Buick and the City of Hamilton have been found equally responsible for the collision.
Justice Antonio Skarica found the City of Hamilton negligent for failing to properly maintain the intersection, especially because it was already known for an above average collision rate.
In a 290-paragraph ruling, Skarica carefully details the evidence, facts, and weights the law. Here are a few key paragraphs:
[224] Having regard to all the circumstances – including the volume of traffic at this intersection, the collision history, the policies of the City of Hamilton, the specific recommendation of Mr. Cooper in 2005 to paint a stop line, the commitment to continue to repaint existing stop lines by the City of Hamilton, the minor cost of repainting the stop line, the TAC and OTM guidelines (acknowledging that these are guidelines are not legally enforceable requirements – see Fordham at paras. 51-53), and the fading of the existing stop line – this intersection, without an effective stop line, provided no guidance to drivers as to where to stop and created a hazard to ordinary reasonable drivers who could safely stop approximately eight metres from the intersection but were in danger if they stopped approximately 8.5 metres back. Maintaining the existing stop line would have removed the required judgment call from ordinary reasonable drivers using reasonable caution and would have ensured that the ordinary reasonable driver would be able to stop with the adequate sight lines in order to proceed safely into the intersection – see Housen at para. 47; Fordham at para. 28; and Deering at paras. 123-125.
[225] In my opinion, the evidence establishes that the condition of the intersection with the faded stop line posed an unreasonable risk of harm to a reasonable driver. Accordingly, I find on a balance of probabilities that the City of Hamilton failed to keep the intersection at 5th Concession West and Brock Road in a reasonable state of repair.
The finding of negligence by the City:
[229] I have found that Mr. Ellis was unable to see the stop line on April 29, 2006 as it had faded and was now an ineffective road marking. Mr. Ellis testified that his normal practice is to stop at the stop line. Being unable to see the stop line, I have found that Mr. Ellis stopped at the stop sign and then proceeded into the intersection when it was not safe to do so.
[230] Mr. Young testified that if Mr. Ellis had stopped at the faded stop line (which I find Mr. Ellis would have done if it was visible given Mr. Ellis’s normal practice to stop at the stop line), he would have been able to see 270 metres south on Brock Road and this sight line would have enabled Mr. Ellis to see the oncoming minivan and the accident would never have happened.
[231] Accordingly, I am satisfied that the plaintiff has satisfied the onus that is on him to prove this accident would not have occurred without the City of Hamilton’s negligence in failing to keep the intersection in a proper state of repair.
Further on:
[259] Despite this carnage and despite the recognized need and recommendations of three separate city staff, this intersection was not repainted until July of 2008 (see Exhibit 10, Tab 33). This repainting was done four years after the last repainting in 2004. Mr. Cooper testified that the intersection should be repainted every six months. The evidence is clear that the stop line had faded and was ineffective by at least the fall of 2005. The city waited almost three years to repaint the stop line. The cost of repainting was a meagre $100, at most, and there is no explanation at all as to why this stop line and the recommendations to repaint it were neglected while the city was aware of the increasing dangerousness of this intersection.
[260] Accordingly, the evidence is overwhelming that the city did not take reasonable steps to repaint the stop line or prevent the default from arising.
[261] I conclude that the city has failed to establish any of the defences outlined in subsection 44(3) of the Municipal Act.
Justice Skarica concluded by declaring the City 50% liable for damages:
[289] Accordingly, the following order is to issue:
- Regarding the defendants Richard Ellis and Wendy Ellis, they negligently caused the accident of April 29, 2006 which caused the damage and loss to the plaintiffs Michael Chiocchio Sr. and Michael Chiocchio Jr. and are liable for 50 per cent of all damages and losses incurred by those two plaintiffs due to the April 29, 2006 accident.
- Regarding the defendant City of Hamilton, the city negligently caused the accident of April 29, 2006 which caused the damage and loss to the plaintiffs Michael Chiocchio Sr. and Michael Chiocchio Jr. and the City of Hamilton is liable for 50 per cent of all damages and losses incurred by those two plaintiffs due to the April 29, 2006 accident.
- The counterclaims of the defendants Richard Ellis, Wendy Ellis and the City of Hamilton against Amy Dowling are dismissed.
- Costs of the trial are awarded to the plaintiffs Michael Chiocchio Sr. and Michael Chiocchio Jr.