Winter is upon us and it can be easy to fall down. We may blame someone else for the condition of their property but sometimes it is our own fault for not wearing appropriate footwear or not looking where we are going. In other words there may be contributory negligence on our part.

The Civil Code stipulates that everyone must act in such a way so as not to cause damage to another. When he fails to do so he may be ordered to make reparation for any damage he causes, bodily, moral, or material. This also applies to municipalities, which are governed by other legislation as well.

Under the Quebec Municipal Code and the Cities and Towns Act if you want to sue a municipality in damages a special notice containing details of your claim must be sent in writing within a specified delay, and legal proceedings must be instituted within six months of the date the damage occurred. No municipality may be held liable for damage resulting from an accident, of which any person is the victim, on the sidewalks, streets, roads, walkways or bikeways, by reason of the snow or ice, unless the claimant establishes that the accident was caused by the negligence or fault of the municipality. The court is required to take weather conditions into account. The City of Montreal does not require notice in the case of personal injury although such notice is suggested. The delay to sue is three years.

The following judgments illustrate the laws mentioned above. The first one pertains to street conditions. The male victim was described by police as being well dressed and wearing indoor shoes. The victim produced photos showing the damaged and uneven condition of the sidewalk. Testimony was given that, due to construction in the area, the sidewalks needed to be repaired but it was too soon to do so. It was admitted that some temporary improvement could have been attempted. The judge cited the relevant sections of the Civil Code and the Cities and Towns Act including the necessity for the complainant to prove negligence. He stated that a municipality does not have to meet a standard of perfection but must take reasonable precautions to protect the security of users of its sidewalks. In determining responsibility the weather is a factor. The court was of the opinion that the municipality had not taken reasonable precautions to protect the security of pedestrians but the plaintiff had contributed to the accident by wearing indoor shoes even though the snow had started to fall several hours earlier. The judgment held both the plaintiff and the municipality equally responsible for the accident. Damages were assessed at $54,000 but the municipality only had to pay $27,000.

It is not only municipalities that must act responsibly during periods of inclement weather but property owners as well. When a woman fell on an outside staircase and broke her leg while going to do housework the judge used words similar to those used in cases involving municipalities. It was held that the property owner had to maintain the property, as would a reasonable, prudent and diligent person taking into account weather conditions. An owner is not the insurer of those who walk on his property nor can he foresee or prevent everything. The sole presence of ice would not have been enough to hold an owner responsible. However, in this particular case the thickness of the snow covering the ice on the staircase on the day of the accident showed that the owner had not performed adequate maintenance. There was no proof that the plaintiff had been careless or imprudent or had in any way contributed to her accident. The homeowner was held solely responsible for the damages suffered by her.

In another case a woman had parking at the office building where she worked. Coming back after the holidays, she parked, slung her purse and computer case over her head, took her briefcase in her hand, closed the car door, took a step towards the building door, slipped and fell hitting her head on the pavement. She lost consciousness for a few minutes. Upon coming around she noticed that under the thin layer of snow on the ground there was a sheet of ice leading from the parking area to the steps of the building. She sued the building owner who in turn sued the company hired to maintain the parking area. The building owner admitted it had an obligation to provide a secure place for its tenants but argued that it had made a reasonable effort to do so by hiring a company to remove snow and salt the parking lot.

The court held that the owner also had an obligation to monitor the services of the company it had hired and where necessary to act in order to remove any danger that might exist. Both the owner of the building and the representative of the snow clearing company should have realized that plaintiff’s parking spot had not been cleaned and presented a potential danger to tenants, yet they had done nothing.  In failing to remedy the situation the building owner had committed a fault. The snow cleaning company had an obligation to keep the parking spots free of danger and by failing to do so had also committed a fault. The plaintiff saw that there was snow in the parking lot and should have suspected it could be slippery especially after the holidays yet she walked in a narrow space without taking any special precautions thereby committing an act of fault contributing to her damages. The plaintiff was held responsible for 50 per cent of her damages.

So be careful, be prudent, be observant, wear proper boots, and have a safe winter.