A recent decision by the Court of Appeal for Ontario is being viewed as a welcome gift to municipalities who have felt “under siege” by road claims.
Kirk Boggs, an insurance lawyer with Lerners LLP says the
Fordham v. Dutton-Dunwich (Municipality) decision is a significant one on municipal road liability because it clarifies the law with respect to what is actionable in this area. The decision states:
“A municipality’s duty of repair is limited to ensuring that its roads can be driven safely by ordinary drivers exercising reasonable care. A municipality has no duty to keep its roads safe for those who drive negligently.”
On a clear night in January 2007, then 16-year-old Andrew Fordham was driving from one friend’s house to another and took a route through Dutton-Dunwich, located in southwestern Ontario’s Elgin County. He was driving on rural roads unfamiliar to him. Believing there was no other traffic coming, he drove through a stop sign at or near the speed limit of 80 km per hour.
The road Fordham was driving on curved to his right just after the intersection. In trying to navigate the curve, he lost control of his car and crashed into a concrete bridge abutting the road. He suffered brain damage and has no memory of the crash.
Fordham sued the municipality of Dutton-Dunwich for non-repair of the road. He claimed the municipality had breached its statutory duty because it had failed to post a checkerboard sign warning of the change in the road’s alignment. The trial judge agreed.
Superior Court Justice Johanne Morissette had held that “[c]learly, it is a local practice in this rural area for drivers to go through stop signs if they consider it safe,” and “[o]rdinary rural drivers do not always stop at stop signs and the defendant knew that.” In her opinion, the change in the road’s alignment was a “hidden hazard.”
She found “that the circumstances of this intersection require more than a stop sign to give ordinary ‘rural’ motorists reasonable notice of [a] potentially catastrophic hazard ahead.”
But the trial judge also found Fordham negligent because he had failed to stop at the stop sign. In fact at the beginning of the trial, Fordham admitted he was negligent. He agreed that if he had stopped at the intersection, the accident would not have happened.
Morrisette concluded that both the plaintiff’s failure to stop and the defendant’s failure to install a warning sign had caused the crash. She apportioned liability for Fordham’s damages equally: 50 per cent to the plaintiff and 50 per cent to the defendant.
The municipality appealed the decision.
The principal question on the appeal, according to Justice John Laskin was: Did the trial judge misapply the test for assessing a municipality’s statutory duty of repair? The appeal court concluded Morrisette did, and therefore the judgment against the municipality cannot stand.
“Running stop signs, even on rural roads, is negligent driving. A municipality has no duty to install warning signs that are unnecessary for reasonable drivers,” Laskin said.
He ruled that Dutton-Dunwich’s appeal would be allowed, set aside the judgment at trial, and dismissed the plaintiff’s action. He ruled Dutton-Dunwich is entitled to its costs on the appeal in the agreed amount of $35,000.
Boggs says the decision provides a step-by-step guide for trial judges on how to approach cases of this type, saying it will be welcomed by municipalities that have felt “under siege” by road claims.
