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Slip and Fall Accident on Public Property – Difficulties in Suing a City

*written by Vic Maan, associate lawyer at Holness and Small Law Group

In a recent blog post, we discussed how the City of Burnaby was held liable under the Occupier’s Liability Act for the injured claimant’s injuries in a backyard fire-pit accident. In this blog post, we will delve deeper into the law when an individual is injured on public property which is owned and operated by the respective city.

In the recent case of Lowe v. Sidney (Town of) 2020 BCSC 335, the injured claimant slipped and fell on black ice while walking in a public parking lot owned and operated by the defendant. As a result, she suffered serious injuries including a partial rotator cuff tear and broken wrist which required surgery. The Town of Sidney (the “Town”) was sued for failing to safeguard about the black ice because it owned the property where the slip and fall took place. In response, the Town brought a Summary Trial Application to have this matter dismissed.

The Town argued that it was not liable for the slip and fall and the presence of black ice because it had a responsive policy in place with respect to snow and ice removal which consisted of written policies, unwritten policies, and policy decisions. Responses under the Policy were triggered by complaints from the public, weather reports, observations of staff, and notifications from the police. This is known as a “policy defence” which if successfully argued will not hold a municipality liable for injuries suffered on public property. In dismissing the action on the basis that the Town’s snow and ice removal was based on a policy decision, the trial judge noted:

[23] Public authorities do not owe a duty of care in tort if it is established that their actions were based upon a policy decision, unless the decision was made in bad faith or was so irrational as not to be a proper exercise of discretion. However, public authorities can be liable for operational decisions provided the plaintiff proves the required elements of liability…

[24] As a general rule, decisions concerning budgetary allotments for departments are classified as policy decisions, because they are an attempt by the public authority to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertaking and of their actual performance. True policy decisions will usually be dictated by financial, economic, social, and political factors or constraints…

[25] Operational decisions are those concerning the implementation and performance of the formulated policies and are usually made on the basis of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness…

[26] If a claim against a public authority arises from an operational decision, the standard tort analysis applies. The duty of care applicable in this case is found in s. 3(1) of the Occupiers Liability Act, R.S.B.C. 1996, c. 337, namely:

… to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.

[27] Liability is found if the plaintiff proves that the defendant’s conduct fell below the standard of care expected in the circumstances: Binette at para. 17.

[28] The standard of care is one of reasonableness, not perfection: Duddle v. Vernon (City), 2004 BCCA 390 at para. 22. Therefore, the question is whether the defendant took reasonable steps to ensure that the plaintiff was reasonably safe: Binette at para. 17.”

In light of this case, whether a city if liable for an accident on public property will depend on whether the property was maintained according to a policy decision or an operational decision. This can only be answered on a case-by-case basis as it is dependent on certain facts and circumstances. Irrespective of the answer, your lawyer will have to conduct a comprehensive and highly proficient examination of your case.

The lawyers at Holness & Small Law Group collectively have over 35 years of experience in prosecuting personal injury claims, including slip and fall claims against cities. If you have suffered an injury on public property that caused or contributed by any city in the Province of British Columbia, please contact us immediately so your legal rights are protected to the best of your benefit.

Tags: hazards in slip and fall, Slip and Fall, Unusual Danger in Slip and Fall

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"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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