Municipality liable tor slip and fall, failed to inspect icy sidewalk
In the recent decision of Scheck v. Parkdale Place Housing Society, 2019 BCSC 48, the Supreme Court of British Columbia addressed the issue whether the municipality of Summerland was responsible for loss and injuries due to a slip and fall on an icy sidewalk. on December 29, 2015, the plaintiff Ms. Scheck was injured when she slipped and fell on an icy sidewalk adjoining her seniors’ residence in Summerland, B.C. The plaintiff sued Parkdale Place Housing Society (“Parkdale”), the occupier of the building in which she lived, and the Corporation of the District of Summerland (“Summerland”), on whose sidewalk she slipped and fell.
Ms. Scheck swore that she slipped on a patch of ice and fell in spite of using her four-wheeled walker. She swore that this happened shortly before lunch time, and that she saw fresh snow on the public sidewalk on which she fell, which she described as “significant.” Ms. Scheck swore that it had recently snowed during the night or early morning and there was a coating of snow on the sidewalks. The Court accepted this evidence preferring it over the evidence of Mr. Cook, the maintenance coordinator of Parkdale Place, who testified that the sidewalks were bare and dry, and that it had not snowed for some time. Although December 29, 2015 was a holiday for Mr. Cook, he testified that he would have conducted his usual inspection anyway as he lived nearby. Although it is possible that it snowed between any early inspection and the accident, no meteorological or other evidence has been presented to establish whether snow fell during the morning of December 29, 2015.
The Court found Ms. Scheck’s recall of her observations on December 29, 2015, more reliable than Mr. Cook’s recollection based largely on entries in records, or the absence of a notation of snow in those records. As well, slipping on ice is the most likely explanation for Ms. Scheck’s fall in spite of using her four-wheeled walker.
Summerland’s primary argument was that any duty of care it owed to Ms. Scheck that related to the condition of its sidewalks was vitiated or negated in this case by Bylaw No. 93-065, A Bylaw to Require the Removal of Snow, Ice, and Rubbish from the Municipality’s Sidewalks & Footpaths (25 October 1993). Summerland maintained it adopted the Bylaw in good faith, after weighing the public good against the municipality’s available resources, and that the Bylaw represents a reasonable and rational policy decision on its part.
The Court was satisfied that Bylaw 93-065 represented a reasonable, rational, and bona fide policy decision by Summerland’s Council. It was a genuine attempt to balance the duty of care Summerland owed to those using its sidewalks against the services that Summerland could afford to deliver to those users. However, the Court found that Bylaw 93-065 does not stand alone. Bylaw 93-065 does not deal with inspection of municipal sidewalks. However, Summerland assumed an obligation to inspect its sidewalks for the presence of snow and ice through its policy manual, which it revised in 2014. Policy No. 400.3, Winter Road and Sidewalk Maintenance (10 October 2014).
Mr. Denegar’s evidence regarding Summerland’s usual practices in relation to snow and ice maintenance was that due to the limited budget and human resources of the District, the District’s bylaw inspection and enforcement (via its Bylaw Services department) is a reactive, complaints-driven service, and there is no active monitoring of inspection by District staff in respect of compliance with Bylaw 93-065, nor of any other District bylaws.
The Court found that there was a disconnect between Summerland’s written policy requiring daily sidewalk inspections and Mr. Denegar’s evidence that because of budget and human resources limitations, “there is no active monitoring or inspection by District staff in respect of compliance with Bylaw 93-065.”
The Court found that Mr. Denegar’s explanation that Summerland’s failure to follow its written inspection policy was due to its limited budget and human resources does not, in the face of the formally adopted policy to inspect, rise to the level of a “policy immunity defence.” At best, it is an operational decision to ignore the policy adopted by the municipal council.
Put simply, Summerland breached its own policy by failing to inspect its icy sidewalk outside Ms. Scheck’s home on December 29, 2015. The Court concluded that the failure to inspect was a breach of the duty Summerland owed to Ms. Scheck. Summerland owed her a duty to inspect for snow and ice, that Summerland breached that duty by adopting a practice of reacting to complaints rather than inspecting as required by its written policy, and that she sustained compensable damage.
The Court found that because Summerland did not inspect the icy sidewalk, the steps necessary to fix the icy sidewalk were not taken, either by Summerland notifying Parkdale of the icy condition so Parkdale could do what Bylaw 93-065 required of it, or by Summerland calling its contractor in the event of Parkdale’s failure to deal with the snow and ice accumulation.
Therefore, the Court concluded that Summerland’s breach was a significant factor in Ms. Scheck’s injury. By inference, the Court found on the balance of probabilities that Summerland’s failure to inspect for snow and ice was a cause of Ms. Scheck’s slip, fall, and injury, and ordered Summerland to pay damages to Ms. Scheck, to be assessed or agreed.
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