It’s time to again turn our minds to how we can all stay safe through the winter. Most likely, you have already pulled your snow tires out of storage, checked their treads for wear, and had them mounted on your vehicle. But have you also checked the treads of your family’s winter boots before heading out into the snow? It’s not only a wise practice to ensure the safety of your family, but it can also be a legal requirement!

Private Property Owners — Get Out That Shovel

Once the snow starts falling, there is no time to waste in keeping your property clear and safe for everyone to use — you, your family, and visitors (whether you or not you have invited them). Delaying snow removal can make this essential aspect of property maintenance much more difficult, particularly when the mercury hovers around zero and the snow is melting and refreezing. Some important practices to keep everyone safe include:

• Promptly shovel or remove snow from all pedestrian areas (sidewalks, steps, decks, driveways, parking areas, etc.)
• Generously apply salt and sand to slippery areas
• Remove accumulated snow from roofs above entryways and other pedestrian areas
• Remove any icicles or other icy buildup overhanging pedestrian areas
• Remove snowdrifts and snow banks that interfere with pedestrian routes
• Remove any yetis from the property unless known to be docile and inclined to assist with snow-clearing activities

If you neglect to undertake all reasonable snow clearing and property maintenance, you may be found liable for the injuries of others if they slip and fall while on your property. 

Keep Ahead of the Joneses

When it’s dark and cold after a long day of work, and you notice that one of your neighbours has cleared the narrowest of paths through the snow with what appears to have been a spatula, it can be tempting likewise to do the bare minimum to ‘keep up with the Joneses.’ You should be aware, however, that Mr. Jones and his spatula do not set the legal standard for what is required.

In Waldick v. Malcolm, the plaintiff sued his sister after slipping on her rural driveway and fracturing his skull. The sister argued that people who lived in the country — including her brother — didn’t sand or salt their driveways. The Supreme Court found that while that may have been the local practice, it was unreasonable. The sister was found liable for her brother’s injury.

Public Property Considerations

When it comes to the care and maintenance of public property, the policies of the relevant government authority may be immune from negligence claims. The principle of policy immunity is a doctrine intended to create a separation of power so that courts don’t interfere with the rights of elected officials to make policy decisions.

In Nelson (City) v. Marchi, the plaintiff slipped and injured herself while climbing over a snowbank created by the snow-clearing activities of city workers on public property. The Supreme Court of Canada (SCC) confirmed that the core policies of a municipality are immune from negligence claims. However, after considering the evidence relating to Nelson’s snow-clearing operations, the SCC held that they did not constitute core policies that attracted this immunity. In doing so, the SCC identified four factors to help distinguish between policy and operational decisions:

• the level and responsibilities of the decision-maker
• the process by which the decision was made
• the nature and extent of budgetary considerations
• the extent to which the decision was based on objective criteria

In this case, the SCC concluded that the city’s snow-clearing operations were not immune from negligence claims and that the city owed the plaintiff a duty of care. The case was returned to the trial court and was then settled.

Pedestrians — Put Your Best Foot Forward

When the snow starts falling, the immediate focus tends to be on the responsibilities of property owners. However, as pedestrians, we also have a duty to take reasonable precautions to keep ourselves safe as the weather conditions worsen. 

It is well established by law that you are responsible for choosing appropriate footwear when venturing into winter weather. Plaintiffs who prefer smooth-soled dress shoes have had their wintertime slip-and-fall claims outright rejected by the courts. 

Understanding Contributory Negligence

If a defendant is found negligent in maintaining their property, but the plaintiff also wore inappropriate footwear, the court may find contributory negligence. This is a legal doctrine that relates to the allocation of responsibility for an accident or injury. If the injured party (i.e. the plaintiff) contributed to their injury through their negligence, the plaintiff may be awarded damages in a reduced amount. The degree of the plaintiff’s responsibility — and the corresponding amount by which their damages are reduced — is generally expressed as a percentage.

In a case where a plaintiff was successful in a negligence claim due to icy buildup on the defendant’s property, her damages were reduced by 20% because she had been wearing high-heeled shoes. This is a generous finding for the plaintiff compared to a recent case in Ontario.

In Martin v. AGO et al., the plaintiff was walking inside an Ontario courthouse when he slipped on water and tore his hamstring. The court examined the plaintiff’s dress shoes submitted as evidence at trial. Finding that the soles of the shoes were 30% worn, the court reduced the plaintiff’s damages by that percentage. The court also considered the floor cleaning procedures regularly followed at the courthouse, including the placement of ‘wet floor’ signage, in finding the plaintiff contributorily negligent for his fall. The court clarified that property owners don’t have to eliminate every possible danger or constantly surveil their property to guard against all mishaps. 

Be Careful (Your Duty to Yourself and Others)

While it is informative and often interesting to consider how the courts apportion responsibility for accidents, it is important to remember the paramount principle here: Be prudent and be prepared. 

Now that winter is on our doorstep be sure to dress appropriately, don’t rush, and assess travel conditions carefully before walking or driving through snowy areas. It’s important to have good-quality snow tires and winter boots. However, these alone can’t guarantee your safety in slippery conditions. A recent investigation by CBC Marketplace found that five out of six winter boots failed a slip test on ice. Organizations such as the Automobile Protection Agency test winter tires and have found similar variability in their performance.

Contact Calgary’s Personal Injury Lawyers at Cuming & Gillespie if You Have Been Involved in a Slip-and-Fall Accident

If you or a loved one has been involved in a slip and fall accident, contact the experienced personal injury lawyers at Cuming & Gillespie LLP to learn about your rights and the potential to recover compensation for damages. To set up a free consultation with a member of our team, contact us online or at 403-571-0555.