Ice and Snow, Slip and Falls – Words to the Wise
After a very slow, and warm, start to Winter we have finally received snow, freezing rain, ice and are at this time experiencing, for some of you, suffering a typical Southwestern Ontario Winter. That being the case, we at Michael Robertson – Lawyer, caution you all as to safety when walking upon private, and indeed municipal, sidewalks, walkways and streets.
In the event that you do suffer a fall on snow or ice, and are injured as a result, and if you are of the view that this occurred as a result of someone’s dereliction of duty, whether a private property owner or Municipality, the faster you act, obviously the better. We would respectfully suggest that photographs of the scene be taken immediately so that as time passes, weather changes, and memories wane, there shall be some visual record of the incident scene.
When one falls on private property, on the sidewalk or walkway or driveway of a residential or business premise, the limitation period for action is two years from the date of the slip and fall. Similarly, when a Municipality is involved the limitation period, the time within which to sue, is the same pursuant to the provisions of the Municipal Act, 2001, one must give written notice of the occurrence and injury within ten days of the occurrence and such notice delivered personally or sent by registered mail, to the Clerk of the Municipality. Failing such notice, it may, except in the case of death of the injured person as a result of the incident, preclude or prevent one from commencing formal legal proceedings or a lawsuit!
In Ontario, municipalities enjoy even further indulgences granted by our legislation In the case of a claim for personal injury caused by snow or ice on a sidewalk, the law in Ontario is that a claimant can, and will, be successful only if that claimant can establish gross negligence, as opposed to negligence, or simple/ordinary negligence, on the part of the Municipality. Gross negligence is a legal concept and implies that the conduct complained of goes beyond simple negligence and is essentially a conscious or voluntary disregard of the need to use reasonable care or conduct which is likely to cause foreseeable serious injury or harm to a person. Essentially, it is conduct that is extreme when compared with ordinary negligence which is a mere failure to exercise reasonable care. Bottom line, ordinary negligence and gross negligence differ in the degree of inattention.
In Ontario there is also the concept of contributory negligence. In other words, a claim is not necessarily “all or nothing”. Lawyers, and insurance companies, and indeed the Courts, on a routine basis ascribe liability or attribute it to both parties, the Municipality or occupier of the premises and perhaps the injured party. In other words, both could be found to have acted with negligence such proportioned on any percentage adding to 100. In such case, the settlement, or Court award, payable to the injured person is that percentage of negligence/gross negligence found upon the occupier of the sidewalk or icy and snowy property.