Now that spring has arrived we may soon start to enjoy more outdoor activities. However, we need to be on the look out for some of the winter freeze and thaw effects that may be less noticeable. When the soil around and under concrete, paving stones and other sidewalk materials becomes wet and freezes again in winter months it can expand and push up parts of sidewalks. The uneven surfaces left by this freeze and thaw process over the winter can cause trip hazards for people using sidewalks.

We cannot expect to walk on perfectly smooth surfaces outside and we have an obligation to look out for where we are walking to avoid tripping. However, we cannot always be looking at our feet when we are walking and sometimes uneven sidewalk surfaces cause serious trip and fall injuries such as fractures and ligament injuries to ankles, knees, wrists, arms and shoulders. Concussions and head injuries can occur too. If you have been injured by a trip hazard on a sidewalk you may have difficulty working or you may require care and rehabilitation and you may be entitled to compensation against the property owner or municipality where the trip occurred.

In Ontario, a municipality may be found negligent for a trip hazard on a sidewalk but the mere fact that a trip and fall has occurred does not establish negligence. The injured party must establish that the sidewalk is in a state of “non-repair”. What is a reasonable state of repair will depend on the facts of each case. The courts will look at all the circumstances of a case, including whether the municipality had a reasonable system of inspecting for trip hazards and also whether the injured party was using ordinary care on the sidewalk in question. However, while the facts of each case must be taken into account, courts are generally reluctant to find any sidewalk variance measuring less than three-quarters of an inch to constitute a state of non-repair. See for example the decisions of Slater v. Toronto (City), 2004 CanLII 45455 (ON SC) or Riehl v. Hamilton (City), 2012 ONSC 3333 (CanLII)

You should be aware that if you are injured in a fall on a municipal sidewalk, section 44(10) of the Municipal Act, 2001, S.O. 2001, c. 25 requires you to provide notice of the injury and claims to the municipality within 10 days of the incident. You may also require the services of a professional investigator to accurately photograph the trip hazard with a measuring tape to accurately preserve the evidence of the height of the sidewalk variance. Moreover, it is also important to determine whether the sidewalk in question is on private property or municipal property to determine what steps must be taken to preserve your rights. Accordingly, you should not delay in speaking with an experienced personal injury lawyer if you have been injured.

Sean Mackintosh is a Partner with the Personal Injury Group and handles cases for those that have been injured by car accidents, medical malpractice and property hazards, and for those that have been denied disability insurance benefits. If you have been injured don’t hesitate to contact Sean at 519-661-6753 or by email at smackintosh@harrisonpensa.com for a free consultation to discuss your rights and to see what can be done to help you.

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October 16, 2019

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