Depending on the case, liability against a municipality for not properly maintaining roads can be a very difficult task. Although there exists the principle that municipalities owe a duty to motorists to keep roads in a reasonable states, there also exists the principle that motorists themselves must also carry out ordinary care. Any assessment of liability must be done based on all of the circumstances, such as road signage, road maintenance, as well as the state of the driver and the speed of their vehicle. The case of Morsi v. Fermar Paving Limited et al. has paved the way for establishing possible municipal liability. In this case, Mr. Morsi was travelling on a roadway under construction with signs advising of the roadwork ahead and a posted speed limit of 60 km/h. A construction advisory limit of 40 km/h was also posted and there were at least four curves in the area where Mr. Morsi was travelling. Mr. Morsi was driving about 120 km/h and tragically collided with a telephone pole after his vehicle left the road. In trial, the court found that the municipality and the road construction contractor held half of the liability for Mr. Morsi’s injuries, with the remaining half assigned to Mr. Morsi for his negligence. The court found that there was inadequate signage and that the roadway was not properly inspected while undergoing construction. However, this decision was reversed by the Court of Appeal, attributing full liability to Mr. Morsi as he was driving twice the legal speed limit and three times the speed advisory limit even after passing signs. Other cases have now relied upon the Morsi decision, presenting the possibility that more liability can be established against road authorities in the future.
In another case of Deering v. Scugog, a 19-year-old girl was travelling on a rural road that had recently been resurfaced. The road was on a steep hill, the speed limit was 80 km/h, and there was no centre line. It was dark out and the girl believed she was travelling on her side at the speed limit; however, she steered to the right to avoid a head on collision, since she thought that another vehicle’s headlights were coming at her. She ended up losing control of her vehicle by veering back to avoid the ditch next to the narrow shoulder. Her and her sister suffered spinal cord injuries and are now paralyzed below the chest. A proper and timely engineering investigation was crucial to the case and a number of issues were found with the roadway including a deflection on the road, which made it seem as though vehicles in the opposite direction were heading at you, when that wasn’t actually the case.
Further, in terms of winter maintenance cases, it is important to hire an investigator as well as obtain accident reports for the nearby region on the day of the accident, and consult with a weather expert, in order to gain evidence regarding the hazardous road conditions. The success in trials regarding road authorities rely heavily on a comprehensive and timely investigations, with the use of experts and knowledge regarding pertinent standards.
Information obtained from the April 2014 Issue of The Litigator.