December 07, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
In two recent cases that proceeded to the Court of Appeal in Ontario, the court was asked to determine the liability (if any) of the municipalities of stop line markings at intersections and collisions. In Chiocchio v Hamilton (City) the liability of the municipality was not upheld. In Smith V. Safranyos, liability against the city was upheld.
In Chiocchio v Hamilton (City) Simmons, Huscroft and Miller JJ.A. considered the appeal from Justice Skarica of the Superior Court of Justice. In this tragic case, Mr. Chiocchio Sr. was rendered a quadriplegic following a car accident at an intersection. The intersection is of two two-lane roads governed by a stop sign in one direction. The speed limit on the other road is 80 km/h. It is undisputed that the stop sin at the intersection was between 8.4 and 9.4 metres behind a faded stop sign painted 12 years before. The stop sign is a total of 10-12 metres from the edge of the road intersection.
The driver of one car stopped at the intersection and pulled out past the stop sign and collided with the car Mr. Chiocchio was a passenger in. The other driver conceded negligence. At trial the trial judge also found “the Corporation of the City of Hamilton had breached its duty to keep the roadway in a reasonable state of repair by failing to repaint a faded stop line that was no longer effective… in guiding drivers where to stop”. His conclusion was the City was 50% responsible for the accident. The City raised several issues in the appeal “including that in finding non-repair, the trial judge misapplied the ordinary reasonable driver standard is dipositive and it is unnecessary that we address the remaining ground of appeal”.
The Court of Appeal considered the law and determined that:
Contrary to the reasoning of the trial judge, the obligation of reasonable drivers was not to determine whether they should stop 8 or 8.5 meters back from the intersection, so they would have an adequate sightline of northbound traffic. Rather – and particularly considered in the context of the obligation under s. 136 of the HTA to stop immediately before entering the intersection – it was to stop at a point close enough to the intersection so they would at least have sightlines in both directions. Drivers who fail to comply with the rules of the road established under the HTA and who also act in a manner that is contrary to common sense cannot meet the ordinary reasonable driver standard. The trial judge erred in failing to recognize that and in failing to recognize that the evidence in this case did not fully address the sightlines for southbound traffic – a necessary component to applying the ordinary reasonable driver standard on the facts of this case.
In the circumstances, the appeal is allowed, the trial judge's finding that the City failed to keep the roadway in a reasonable state of repair is set aside and the action as against the City is dismissed.
The second case, Smith c. Safranyos, where the decision to uphold municipal liability in a collision was upheld at appeal dealt with a horrendous two car accident in the City of Hamilton. The car driven by Ms. Safranyos carrying four children, failed to yield the right of way entering a highway and was T-boned at highway speed. The driver of the other car was speeding and had consumed alcohol.
Lawsuits on behalf of the children were brought against the drivers based on alleged negligent driving playing a role in the crash. The claims against Hamilton were based on the non-repair of the intersection, its design and condition, as a cause of the accident.
The claims were tried together but then bifurcated. Only liability as been tried so far. The trial judge found each of the defendants liable at 50% to Ms. Safranjoy and 25% each to Hamilton and McHugh. Hamilton and McHugh both appealed.
The Court of Appeal dismissed Hamilton’s appeal. The trial judge applied the correct legal test in finding Hamilton to be liable for non-repair under the Municipal Act, 2001, S.O. 2001, c. 25, s. 44 (“Municipal Act”), and found that based on the evidence before her the trial judge was correct to find that this particular intersection was in a state of non-repair.
The Appeal Court also found that notwithstanding the deferential standard of review that applies to determinations of fact, Mr. McHugh’s appeal was allowed. The trial judge committed palpable and overriding errors in finding him liable. The action against him as is dismissed as there is no evidence upon which he could properly be found liable.