Seek legal advice if you’ve been hurt on an icy sidewalk

By Tony Poland, LegalMatters Staff • Winter weather increases the likelihood of a nasty spill on icy sidewalks and those who have been injured should avoid taking legal recourse on their own, says Toronto critical injury lawyer Dale Orlando.

Orlando, partner with McLeish Orlando LLP, says claiming damages in a slip and fall is not always as straightforward as some may believe.

“It’s not a simple process,” he says. “It’s in your best interests to hire a lawyer if you are hurt in a fall.”

Orlando says many municipalities have bylaws requiring homeowners to remove snow and ice from their sidewalk even though it lies outside of their property line.

Care of duty

“You are responsible for clearing the sidewalk that’s not on your property and you can face a fine if you don’t do it, but it doesn’t create a duty of care as the adjacent property owner,” he says.

So, who is responsible if someone is seriously injured on an icy sidewalk? That depends, Orlando says.

“Just because someone slips and falls doesn’t mean it’s anybody’s fault,” he tells LegalMatterCanada.ca. “Every case needs to be investigated so it can be judged on its merits.”

Orlando explains the Municipal Act requires municipalities “to maintain roadways and sidewalks are kept in a reasonable state of repair.” A homeowner is responsible for everything within their property lines, he adds.

“However, just because somebody falls on an icy sidewalk doesn’t mean that the municipality has breached its responsibility,” he says. “There are all kinds of ways a municipality can avoid liability. Likewise, just because somebody falls on the sidewalk in front of my house doesn’t mean I am responsible. I am only responsible if I have actively done something to create that hazard.

“As an adjacent property owner, you don’t have any obligation to keep that sidewalk in a reasonable state of repair. The only way liability would flow to you is if you actually did something to create the hazard on the sidewalk,” Orlando adds.

‘Created a nuisance’

For example, he says, “if you are piling up all your snow on a city sidewalk and somebody trips and falls you are liable because you created a nuisance.”

Orlando says deciding who to sue after suffering an injury in a slip and fall can be tricky.

“There are all kinds of reasons why you want to sue the homeowner as opposed to the municipality. There is a short 10-day notice period when suing municipalities,” he says. “Failure to meet that is fatal to bringing the action in most circumstances.

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“Likewise, if you sue a municipality for failing to clean a sidewalk you will have to prove they were grossly negligent. It’s a higher burden.”

Orlando says a municipality may have 10,000 kms of sidewalks and roads to maintain in an acceptable manner. That doesn’t mean they need to be kept in pristine condition. 

He says the municipality can claim they only have so many resources available for snow or ice removal, or they can argue such details as the sidewalk in question was on a low-volume residential street.

Time is of the essence

Orlando says time is of the essence when filing a claim in a slip and fall accident and seeking legal counsel is important.

“A lawyer will give notice within the 10 days and then through the discovery process, gather the pertinent information,” he says. “Did the city maintain and inspect the sidewalk in a reasonable time? Did they dispatch maintenance to the sidewalk in a reasonable time? Did the adjacent property owners do something to create a hazard? Those are not facts a plaintiff is going to be immediately aware of but they are facts necessary to build a case.”

Orlando says if you have been seriously injured in a fall, “it is important to have someone go out and try to preserve whatever scene evidence there is and do things such as measure the size of the patch of ice.”

“Someone should get to the scene within a relatively short period of time because conditions change rapidly when you are talking about ice and snow,” he says. “Document the condition of the sidewalk. You’ve got to note the exact location of the fall in order to put the municipal body on notice.”