Court Finds City of Kitchener Negligent for Failing to Salt Downtown Sidewalk in Timely Manner

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The Ontario Superior Court of Justice ruled two weeks ago that municipalities must have standards for the sidewalks they maintain, and the standards must be comparable to those for motor vehicle lanes.

In this case, a woman slipped and feel on ice on a municipality maintained downtown sidewalk in January 2010. Due to her choice of wearing running shows, the woman was found 50% responsible for her slip and fall, nonetheless, the City was found 50% at fault due to its negligent in failing to salt the sidewalk despite having reasonably known of the dangerous conditions of its downtown sidewalks.

Significantly for other municipalities, including Hamilton, the Court held that municipalities must have policies for responding to freeze-thaw cycles creating ice on municipally maintained sidewalks – and the policies must include reasonable response times for salting. Waiting until daytime hours during major freeze thaw cycles was held as unacceptable by the court.

Here are a few key paragraphs from the ruling:

[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.

[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. T3here 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.

[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.

 

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