The Toronto Start recently posted an article concerning the amount of slip and fall lawsuits that the City of Toronto is facing. Is it cheaper to pay claims than properly clear laneways, sidewalks and pathways?
Vier Guy stopped dead in her tracks, the laneway extending before
her like a snow and ice covered obstacle course. She had seen it in
this perilous state before.
Nine years ago, she slipped and fell
on this very same laneway, adjacent to the Greenwood subway exit on the
Bloor-Danforth line. She fractured her wrist, bumped her head and sued
the City of Toronto.
Last month, an Ontario Superior Court judge
ruled the city was "grossly negligent." Justice Alfred J. Stong said
the laneway should be treated as a sidewalk – with snow and ice to be
removed – because it is regularly used by local residents, subway
passengers, students from nearby Danforth Collegiate & Technical
Institute and people making deliveries to stores on Danforth Ave.
Stong
awarded Guy, a 42-year-old nurse, damages of $33,948.39. It included
almost $4,000 in lost tuition when her injuries made it impossible to
complete her York University courses.
The ruling, which the city
is appealing, places Toronto's snow removal practices under scrutiny.
It comes during the second consecutive monster winter – the 115
centimetres of snow so far are more than this time last year – with the
avalanche of snow causing a spike in slip-and-fall injuries, according
to downtown hospitals, insurance company officials, claims adjusters
and lawyers on either side of liability claims.
Guy's lawyer,
Alan Preyra, fears city officials may be making a cold calculation,
judging it cheaper to pay liability claims than to regularly clean ice
and snow. That is why four weeks after the ruling, the laneway was in
as bad a shape as it was the day Guy broke her wrist.
"Is it a
cost issue? Is it preferable to risk the safety of your citizens than
pay the costs of doing your due diligence?" says Preyra, who
specializes in personal injury claims.
He believes the question
is important given city hall's policy of not plowing 2,000 kilometres
of sidewalks in central Toronto – a swath that runs from just north of
St. Clair Ave. down to Lake Ontario, and from Jane St. east to Victoria
Park Ave.
Provincial law requires municipalities to maintain all
sidewalks. They can pass bylaws like Toronto's requiring homeowners to
clean snow from adjacent sidewalks. But courts have ruled that if
someone slips and falls, municipalities are liable. (Homeowners could
become responsible if they've blocked the sidewalk).
The city
won't release figures about spills on ice or snow-covered sidewalks –
not the number of complaints from people who fell, not the number that
filed liability claims and not the amount of money paid out.
"Those
numbers should be public knowledge," says Mike Del Grande, councillor
for the Scarborough-Agincourt ward. "Is there a problem or isn't there?
It's one thing to say 100 people have slipped and fallen on city
sidewalks in a season. It's another to say it's 5,000."
He believes the figures would help determine the effectiveness of the city's plowing and snow removal program.
"The
claims, looking at 10 years of trends, rise and fall by just about
exactly the amount of snowfall," says Toronto budget chief Shelley
Carroll, who has seen the secret slip and fall figures.
The 194
centimetres of snow last winter were roughly twice as much as fell the
winter before, causing liability claims to almost double, Carroll says.
Generally, 40 per cent of claims are found to have no merit and don't
proceed; the rest require the defence of city lawyers.
Carroll
notes that since amalgamation, council has repeatedly considered
whether to extend snow removal to sidewalks throughout the city. Each
time, a majority opted for the status quo.
"We're delivering a
level of service to the best of our abilities, and one that we can
afford without introducing a 20 per cent tax increase," Carroll says,
noting this year's snow removal budget is $80 million. (The city spent
about $90 million cleaning last winter's snow.)
Slip-and-fall
claims are only reported in the "general liability" category for
transportation services. In 2005 – the last full year the city
published its figures – transportation received 2,040 general liability
claims, 404 more than the previous year. The city estimated it would
cost $9.2 million to finalize all of them, including awards and legal
fees.
Peter Noehammer, director of transportation services, made
clear that more recent figures show liability claims against his
department costing the city about $12 million.
Jeff Madeley,
manager of the city's risk management department, sympathizes with
residents who injure themselves in falls. But he agrees with the city's
insurer that publicity would only encourage more people to sue.
"The legal community is something that's gone amok out there," he says, referring to a growing trend in lawsuits.
Perhaps
a sign of the times was the downtown seminar earlier this month by the
Toronto Lawyers Association on the ins and outs of suing
municipalities. Thirty lawyers listened to Preyra and a colleague
outline court rulings on the maintenance of roads and sidewalks in
winter, new avenues for lawsuits under the Guy decision, and some basic
nuts and bolts.
It can be a lucrative business. Earlier this
month, Preyra settled a claim against the City of Toronto for a
68-year-old woman who fractured her ankle after slipping on a sidewalk
the city doesn't plow. She received $104,000. His share of the $33,000
award to Guy will be relatively modest. But he's presenting the City of
Toronto with a $160,000 bill for legal costs.
The city's
insurance plan has a $5 million deductible, meaning virtually all
successful claims are paid with taxpayers' money. Many are settled out
of court. Most are challenged vigorously, forging a reputation that
makes many lawyers think twice before proceeding against the city.
Preyra,
who has "dozens" of active slip-and-fall cases against the city,
estimates lawyers take 10 per cent of such cases. For the city, the
toughest to defend are those involving the sidewalks it doesn't plow in
central Toronto.
"If it's a sidewalk that the city maintains,
generally there's a good chance of successfully defending it," says
Stuart Forbes, one of the lawyers the city regularly uses to defend it
against snow- and ice- related liability claims.
"If it's one
that they don't maintain, the only real defence you'd have is if it was
in the middle of some vicious storm of some kind. But even then it
would be difficult if it wasn't an area you were going to maintain in
any event."
Toronto spends $12 million a year cleaning and
salting three-quarters of the city's 8,000 kilometres of sidewalks. It
calculates that extending sidewalk snow removal to all neighbourhoods
would cost another $7 million to $8 million a year. Extending it to
Toronto's 250 kilometres of laneways, such as the one the tripped up
Guy, would cost at least another $21 million.
The $8 million
sidewalk-clearing estimate was contained in a 2004 report that claimed
less than a third of the 2,000 kilometres of unplowed sidewalks could
be serviced with smaller equipment. The rest would have to be done
manually. Inner-city sidewalks are said to be too narrow for plows,
while parked cars and front yard fences raise the risk of property
damage.
But Noehammer concedes that central sidewalks could be
plowed if Toronto, like Montreal, spent "considerable resources" buying
smaller tractors.
The city hasn't calculated whether spending
more to plow all sidewalks would pay for itself in the long run by
reducing liability payments and legal fees.
Noehammer says
similar cost-benefit analyses have been done for some roads. They
resulted in increased safety and reduced liability claims "by
significant margins." He favours similar studies for sidewalks.
"If you're able to improve safety so people aren't getting hurt, that
should be the No. 1 goal and, financially, you're also avoiding the
subsequent insurance claim."
Guy agrees: "Pedestrians are important."
Referred by Matt Lalande
If someone has negligently caused you to slip and fall please call Matt Lalande @ 905-639-8894